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Criminal Appeal No. 168 of 1979.
From the Judgment and Order dated 29.9.1978 of the Madhya Pradesh High Court in Criminal Appeal No. 1094 of 1976.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Appellants.
Uma Nath Singh for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This appeal by special leave is di rected against the judgment of the High Court of Madhya Pradesh confirming the conviction of the appellants for the offences under sections 147 and 302/149, I.P.C., and sen tence to undergo imprisonment for life.
The appellants and four persons acquitted by the trial court were tried for the murder of one Hanuwa.
The prosecution alleged that motivated by group rivalry the accused persons attacked Hanuwa with tabbals and lathis on July 11, 1975 at about 8. 30 A.M.
The occurrence happened on the track across the field leading to village Mungeli.
Hanuwa accompanied by his mother Baiyanbai and sister Birjhbai was on his way to Mungeli to supply milk.
When he reached Ghotora near Nayagaon village.
the accused persons advanced towards him and mounted attack.
As a result of the injuries sustained, Hanuwa died on the 104 spot.
When Baiyanbai tried to intervene, she too was as saulted, Baiyanbai lodged the first information report at 12.00 noon the same day against these appellants and others who were finally chargesheeted.
Baiyanbai (PW 1) and Birjhbai (PW 5) were the two eye witnesses who unfolded the prosecution case.
Mangal (PW 4) and Dilashbai (PW 6) deposed to having seen appellants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance.
The medical evidence disclosed that Hanuwa sustained in all seven in juries: two incised wound on the scalp resulting in multiple fracture of the parietal bone and tear of right lobe of the brain: two confusions and three bruises on the forearm, right upper arm scapular region and buttock.
Injuries sus tained by PW 1 was incised wound in between right thumb and index finger which could be caused with any sharp object.
The plea of the accused was that they were falsely implicat ed due to enmity.
The learned Sessions Judge accepted the prosecution evidence and convicted these appellants finding that they were members of an unlawful assembly and death of Hanuwa was caused by the members in prosecution of the common object of the assembly.
Arjun, Bhikam, Nanku and Parethan were given the benefit of doubt in view of the discrepancies in mentioning their names and they were ac quitted.
The High Court on appeal agreed with the findings of the trial court and confirmed the conviction and sen tence.
The conviction of the appellants is assailed before us mainly on the ground that the two eye witnesses in the case are close relations of the deceased deeply interested in involving the appellants on account of the enmity and their evidence was required to be scrutinised with great care and caution and the trial court as well as the High Court failed to exercise the necessary caution with the result conviction has been wrongly recorded leading to miscarriage of justice.
According to the appellants ' learned counsel, the evidence of the eye witnesses read along with the medical evidence renders the prosecution case highly improbable and doubtful about the presence and participation of the appellants in the assault.
It is submitted that the tendency to involve innocent persons by merely mentioning their names is dis cernible and in the absence of independent corroboration the conviction based on the testimony of PW 1 and PW 5 is unwarranted.
We have considered these arguments in the light of the material evidence analysed and discussed by the courts below.
We find that the conviction of the appellants is principally based on the evidence of 105 PW 1 and PW 5, the mother and sister of the deceased.
Though their evidence is not to be discarded as interested, the necessary caution has to be observed in accepting the evidence of these witnesses.
It is an accepted proposition that in the case of group rivalries and enmities.
there is a general tendency to rope in as many persons as possible as having participated in the assault.
"The courts have, there fore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them", vide Baldev Singh vs State of Bihar, AIR 1972 SC 464.
This Court has in several decisions pointed out that "where there is enmity between the two factions then there is a tendency on the part of the aggrieved victim to give an exaggerated version and to rope in even innocent members of the opposite faction in a criminal case and that therefore the Court has in all such cases to sift the evidence with care and convict only those persons against whom the prose cution witnesses can be safely relied upon without raising any element of doubt", vide Raghubir Singh vs State of U.P., AIR 1971 SC 2 156.
On a perusal of the judgment of the High Court, we find that the necessary caution had not been observed in the approach to the evidence.
The occurrence happened on a narrow track.
The deceased Hanuwa was going ahead of his mother and his sister was still behind.
The witnesses noticed the assailants only when they approached the deceased.
The evidence is not clear that the assailants were seen by Baiyanbai or Birjhbai hiding behind the bushes and emerging from the hiding place.
Th witnesses stated that the accused persons surrounded the victim and each one of them assaulted him with the weapon they had.
PW 1 stated that some of the assailants had given more than one blow and Parsadi assaulted her when she tried to intervene.
If a group of more than 15 persons encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the victim.
We have re ferred to the medical evidence which shows that besides the two incised wounds on the scalp which proved fatal Hanuwa had only five minor injuries on his person.
PWs 1 and 5 did not state who caused the head injuries.
They have not at tempted to attribute any one of the injuries to any particu lar assailant.
The evidence is in general terms.
Even in the first information report, PW 1 only stated that the persons named therein attacked Hanuwa with tabbals and lathis and caused his death.
In a melee where several people are giving blows at one and the same time it will be impossible to particularize the blows.
If any wit 106 ness attempts to do it, his veracity is doubtful.
But it cannot be forgotten that it is simpler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close cross examination.
Therefore, the nature of the injuries sustained by the victim assumes importance.
The nature of the injury sustained in spite of the assertion of the concerted attack with lathis and tab bals by several assailants numbering over 15 renders the evidence doubtful about the participation of such a large number of persons.
When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased, Hanuwa, the necessary inference is that not more than seven persons might have participated in deliver ing the blows.
Therefore, the presence of more than seven persons is doubtful.
This aspect of the case has not been given due weight by the High Court while appreciating the evidence in the case.
"Where an occurrence takes place involving rival fac tions it is but inevitable that the evidence would be of a partisan nature.
In such a situation to reject the entire evidence on the sole ground that it is interested is to shut one 's eyes to the realities of the rural life in our coun try.
It has to be borne in mind that in such situation easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and has to be eschewed and, therefore, the evidence has to be exam ined with utmost care and caution and the Court has to adopt a workable test for being assured about the role attributed to every accused" vide Muthu Naicker vs State of Tamil Nadu, We have therefore to see whether the testimony of PW I and PW 5 as against all or any of the appellants before us finds corroboration with the material on record.
The trial court had acquitted four persons for the reason that their names had been left out in the narration at some stage or the other.
PW 1 before giving the first information had deliberations with her son PW 3.
The finding of the trial court is that in narrating the incidence to him, PW 1 had omitted to mention the names of Arjun and Bhikam.
Before Court, PW 1 did not implicate Nanku.
The name of Parethan does not find a place in the F.I.R. It is for these reasons the trial court acquitted them.
On such acquittal, it is clear that there had been conscious effort to rope in inno cent persons by merely naming them.
Therefore, the apparent conflict between the medical evidence and the eye witness 's account could not have been overlooked.
We are of the opin ion that the High Court has not observed the necessary caution in accepting the evidence in 107 general terms to uphold the conviction of all the appel lants.
We are thus constrained to consider whether there is any evidence from independent sources to lend assurance to the version of PWs I and 5 regarding the participation of any of these appellants.
We have indicated that the presence of at least seven persons at the scene is probable having regard to the nature of the injuries and the manner of the attack.
It is also clear from the manner in which the incident happened that the assailants acted in prosecution of the common object to cause the death of the victim.
We have no doubt in our mind that more than five persons have actually participated in the crime.
We have clear evidence regarding the identity of only four persons.
Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident.
This evidence lends assurance to the testimony of PW I and PW 5 regarding their participation in the crime.
We are of the view that the conviction of these four persons i.e. Baran, Karan, Bhagau and Parsadi has been rightly sustained.
However, regarding the rest of the appellants, there is scope of genuine doubt and we are obliged to give the benefit of doubt to them.
We accordingly set aside the conviction and sentence of the appellants.
namely, Budhwa, Chandu.
Kushwa, Bhuwan, Rajaram.
Nanda, Chatur, Hari Gannu, Pardeshi and Dukhiram and they are acquitted of the charges.
Their bail bonds stand cancelled.
The appeal is dismissed so far as Parsadi, Baran, Bhagau and Karan are concerned.
These appellants shall surrender to suffer the unexpired portion of the sentence.
The appeal is disposed of as above.
P.S.S. Appeal dis posed of.
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The appellants were convicted for offence under Ss. 147, 149 and 302 IPC for murdering a villager.
The prosecution case was that motivated by group rivalry the accused persons numbering over fifteen attacked the deceased with tabbals and lathis while he accompanied by his mother, PW 1, and sister, PW 5, was on his way to a nearby village to supply milk.
As a result of the injuries sustained the deceased died on the spot.
When PW 1 tried to intervene, site too was assaulted.
She lodged the FIR thereafter the same day against the appellants others.
At the trial PW 4 and PW 6 deposed to having seen appel lants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance.
The medical evidence disclosed that the deceased had sustained in all seven injuries, two incised wounds on the scalp, two contu sions and three bruises.
The trial court found that the appellants were members of an unlawful assembly and death of the deceased was caused by them in prosecution of a common object.
The High Court on appeal agreed with the findings of the trial court.
In the appeal by special leave, it was contended for the appellants that the courts below had failed to exercise the necessary care and caution that was required in scrutinising the evidence of the two eye witnesses who were close rela tions of the deceased and deeply interested in involving the appellants on account of enmity, and that in the absence of independent corroboration the conviction based on the testi mony of these witnesses was unwarranted.
Disposing of the appeal, the Court, 102 HELD: 1.1 It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to involve as many persons of the opposite faction as possi ble by merely naming them as having participated in the assault.
The court, therefore, has in all such cases to sift the evidence with utmost care and caution and convict only those persons against whom the prosecution witnesses can be safely relied upon without raising any element of doubt.
[107C D] Baldev Singh vs State of Bihar, AIR 1972 SC 464; Raghu bir Singh vs State of U.P., AIR 1971 SC 2156 and Muthu Naicker vs State of Tamil Nadu, , referred to.
1.2 The conviction of the appellants was principally based on the evidence of PW 1 and PW 5, the mother and sister of the deceased.
Though their evidence was not to be discarded as interested, necessary caution should have been observed in accepting the same in upholding the conviction of all the appellants.
[104H; 105A] 2.1 In a melee, as in the instant case, where several people are giving blows at one and the same time it will be impossible to particularize the blows.
If any witness at tempts to do it, his veracity is doubtful.
But, it is sim pler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close crossexamination.
Therefore, the nature of injuries sus tained by the victim assumes importance.
[105H; 106A] 2.2 PWs 1 and 5 stated that the accused persons sur rounded the victim and each one of them assaulted him with the weapon they had.
PW 1 stated that some of the assailants had given more than one blow, They did not state who caused the head injuries.
They have not attempted to attribute any one of the injuries to any particular assailant.
The evi dence was in general terms.
If a group of more than fifteen persons had encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the vic tim.
The medical evidence shows that besides the two incised wounds on the scalp which proved fatal the deceased had only five minor injuries on his person.
[105E G] 2.3 When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased the necessary inference would be that not more than seven persons might have participated in delivering the blows.
therefore, the presence of more than seven 103 persons is doubtful.
This aspect of the case has not been given due weight by the High Court while appreciating the evidence.
[105H; 106A C] 3.1 The manner in which the incident happened also makes it clear that the assailants acted in prosecution of the common object to cause the death of the victim.
There is no doubt that more than five persons had actually participated in the crime.
There is clear evidence regarding the identity of only four persons.
Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident.
This evidence lends assurance to the testimony of PW 1 and PW 5 regarding their participation in the crime.
[107B C ] 3.2 The conviction of these four persons has, therefore, been rightly sustained.
Regarding the rest of the appellants there is scope of genuine doubt.
Their conviction and sen tence are accordingly set aside.
[107D]
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vil Appeal Nos.
4843 44 of 1990.
From the Judgment and Order dated 28.10.1988 of the Rajasthan High Court in D.B. Civil W.P.
No 966of 1986 and 121 of 1985.
Dr. L.M Singhvi, P. Agarwal, S.K. Jain, Sahid Rizvi and D.K. Singh for the Appellant.
N.S. Hegde, Additional Solicitor General, J.D. Jain, R. Mohan, R.A. Perumal, Hemant Sharma, Ms. A. Subhashini and Ms. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted in all the cases.
Pursuant to the resolution passed by certain State Legislatures including that of Rajasthan under clause 1 of Article 252 of the Constitution, Parliament enacted The Water (Prevention & Control of Pollution) Act,1974 (Act VI of 1974), (hereinafter called the '1974 Act '), to provide for the prevention and control of water pollution, the maintaining or restoring of wholesomeness of water, the establishment 123 of Boards for the prevention and control of water pollution, the conferring on and assigning to such Boards powers and functions relating thereto and for matters connected there with. 'Pollution ', as defined in section 2(e), means "such contamination of water or such alteration of physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water as may, or is likely to, create a nuisance or render such water harmful or inju rious to public health or safety, or to domestic, commer cial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of acquatic organisms".
"Sewage effluent" according to section 2(g) means "effluent from any sewerage system or sewage disposal works and includes sullage from open drains".
"Trade efflu ent" according to Section 2(k) includes "any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any trade or industry, other than domestic sewage".
Section 3, 4 and 13 provide for the con stitution of a Central Board, a State Board and a Joint Board, respectively.
Section 16 enumerates the functions of the Central Board constitution for promoting cleanliness of streams and wells in different areas of the State.
Section 17 sets out the functions of the State Board which, amongst others, include preparing a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and for securing its execution; inspec tion of sewage or trade effluents, works and plants for the treatment of sewage and trade effluents: evolving methods for treatment of sewage and trade effluents and for the disposal thereof and laying down standards of treatment of sewage and trade effluents to be discharged into any partic ular stream.
Sections 21 and 22 confer power on the State Board or any officer empowered by it to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from any other place into any stream or well and to send the samples for analysis to the Laboratory established or recognised for that purpose by the concerned Board.
Section 24 prohibits the use of any stream or well for the disposal of polluting matters.
Section 25 imposes restrictions on new outlets and new discharges.
Section 25(1) reads as under: "Subject to the provisions of this section, no person shall, without the previous consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or trade effluent into a stream or well, or begin to make any new discharge of sewage or trade effluent into a stream or well.
" 124 Under these provisions the application for consent has to be made to the State Board in the prescribed form containing the particulars relating to the proposed construction, installation or operation of any treatment or disposal system or of any extension or addition thereto.
Sub section (7), which is relevant for our purpose, reads as under: "The consent referred to in sub section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board.
" Section 26 provides that persons discharging sewage or trade effluent into a stream or well before the commencement of the Act shall apply for consent within a period of three months of the constitution of the State Board.
If the State Board refuses to grant consent or withdraws consent already granted an appeal is provided to the appellate authority.
Section 29 confers revisional powers on the State Government to call for the records of any case where an order has been made by the State Board under Sections 25, 26 and 27 for the purpose of satisfying itself as to the legality or propriety of any such order.
Failure to comply with the requirements of the statute is punishable under Chapter VII.
Thus, this law aims at prevention and control of water pollution.
On 7th December.
1977, the President gave his assent to the Water (Prevention and Control of Pollution) Cess act,1977(Act No. XXXVI of 1977), (hereinafter referred to as 'the 1977 Act ').
This Act was enacted to provide for the levy and collection of a cess on water consumed by persons carrying on certain industries, with a view to augment the resources of the statutory Boards for the prevention and control of water pollution.
Section 2(c) defines "specified industry" to mean "any industry specified in Schedule I".
Power (Thermal & Diesel) Generating Industry is included at item No. 14 in Schedule I to the Act.
Section 3 which is the charging section inter alia provides that there shall be levied and collected a cess for the purposes of the 1974 Act and utilisation thereunder.
The Cess under sub section (1) is made payable by every person carrying on any specified industry to be calculated on the basis of water actually consumed for any of the purposes specified in column 1 of Schedule II, at such rate not exceeding the rate specified in the corresponding entry in column 2 thereof.
Schedule II enumerates in column 1 the purposes for which water is consumed and sets out the maximum rate of cess therefore in column 2.
The rare of cess for industrial cooling is three fourths of a paisa, per 125 kilolitre, while it is one paisa per kilolitre for domestic purpose.
Where water gets polluted and the pollutants are easily bio degradable, the rate is 2 paise per kilolitre but where the pollutants are not easily bio degradable and are toxic, the rate is two and a half paise per kilolitre.
It is obvious that the rate of cess depends on the degree of pollution.
It may also be noticed at this stage that the cess is to be calculated on the basis of the water 'con sumed ' for any of the purposes specified in column 1 of Schedule II at the rate set out in the notification issued by the Central Government not exceeding the rates specified in column 2 of the said schedule.
Section 4 provides for affixing of meters for the purposes of measuring and record ing the quantity of water consumed.
Section 5 requires every person carrying on any specified industry and every local authority, liable to pay the cess under section 3, to fur nish returns in such forms and at such intervals containing such particulars as may be prescribed to the officer or authority appointed therefore.
The officer or authority to whom the return has been furnished under section 5 is charged with the duty to make an inquiry as to the particu lars stated in the return and then pass an assessment order stating the amount of cess payable by the concerned person or local authority, as the case may be.
Section 14 pre scribes a penalty for failure to file a return and section 11 provides a penalty for failure to pay the cess within 'the specified time.
Any person or local authority aggrieved by an order of assessment made under section 6 or by an order imposing penalty under section 11, may file an appeal under section 13 within the prescribed time.
Section 7 provides for a rebate if the cess is payable.
It reads as under: "Where any person or local authority, liable to pay the cess under this Act, instals any plant for the treatment of sewage or trade effluent, such person or local authority shall from such date as may be prescribed, be entitled to rebate of seventy per cent of the cess payable by such person or, as the case may be, local authority.
" The expressions 'sewage ' and 'trade effluents ' having not been defined would have the same meanings respectively assigned to them under the 1974 Act.
Section 17 empowers the Central Government to make rules for carrying out the pur poses of the Act.
Under that section, the Central Government made the Water (Prevention & Control of Pollution) Cess Rules, 1978, (hereinafter called 'the Rules ').
Rule 6 there of deals with rebate.
Under that rule where a consumer instals any plant for the treatment of sewage or trade effluent such consumer becomes entitled to the rebate under section 7 on or from the expiry of 15 days from the 126 date on which such plant is successfully commissioned and so long as it functions successfully.
The appellant, the Rajasthan State Electricity Board constituted ' in 1957 under section 5 of the , established a Thermal Power Station on the bank of River Chambal in Kota for generating energy.
It admittedly consumes water from the river for Condensor Cooling.
The water drawn from the river is filtered and thereafter passes through an enclosed pipeline over the condensor unit for cooling the condensor, After the water is used for cooling, it is treated as a trade effluent in the neutralisation plant installed by the appellant at consider able expense with a view to preserving the wholesomeness of water before it is discharged into the river.
After conden sor cooling, the water passes through an enclosed under ground steel pipeline of the length of about 478 meters upto the seal pit.
On reaching the seal pit the water is pumped to a height of about 22 feet from where it is made to fall into an open channel and is then carried in that channel to a distance of about 150 feet before it plunges into the river.
In this manner the water at the seal pit comes in contact with air.
Its temperature is reduced firstly by the 22 feet fall into the open channel and thereafter by cover ing a distance of about 150 feet before getting merged in the river or stream.
The temperature is thus brought down to below 40 deg.
C, the standard prescribed under the Minimum National Acceptable Standards published by the State Board.
The appellant had also installed a 0.4 MGD plant for treat ment of sewage.
Both these plants, contends the appellant, are working satisfactorily.
The appellant submitted monthly returns of the water consumed from river Chambal for its Thermal Station, units 1 and 2, for the period from July, 1983 to January, 1984 and February, 1984 to June 1984.
The Assessing Authority, re spondent No. 2, assessed the cess at Rs. 13, 13,710 for the first period and Rs.9,42,013 for the subsequent period.
No rebate was allowed under section 7 of the 1977 Act on the ground that the so called neutralisation plant was not a plant for the treatment of sewage or trade effluents within the meaning of the said provision.
Nothing was said about the plant for the treatment of sewage.
The appellant filed an appeal under section 13 in respect of the cess claimed for the period from July, 1983 to January, 1984.
The appel late authority dismissed the appeal holding that the cess was correctly assessed and the appellant was not entitled to rebate.
In respect of the assessment for the period from February, 1984 to June, 1984 the appellant submitted a review petition which was rejected by respondent No. 2.
The appellant then preferred an appeal but the 127 same was dismissed as barred by limitation.
The appellant preferred separate Writ Petitions Nos.
12 1/85 and 966/86 in the High Court challenging the two assessment orders.
In the former writ petition the High Court granted interim stay against the recovery of the disputed cess amount to the extent of seventy percent till the disposal of the writ petition.
In the second writ petition since the appellant had already paid the amount of cess, the application for stay did not survive but for future assessment orders, it directed the appellant to pay thirty percent regularly and the remaining seventy percent with interest at 15% per annum in the event the challenge failed.
Both the aforesaid writ petitions were finally disposed of by a Division Bench on 28th October.
1988 which dismissed them holding that the cess was correctly assessed and the appellant was not enti tled to rebate.
In taking this view the Division Bench came to the conclusion that there was no material on record to show that the appellant had applied for consent of the State Board to instal a plant either under section 25 or section 26 of the 1974 Act nor was there evidence to show that such consent was given.
It, therefore, opined that the authori ties below had rightly concluded that the benefit of rebate under section 7 was not admissible to the appellant.
While dismissing the writ petitions the Division Bench, however, observed as under: "Anyhow if the consent after the period of assessment in dispute has either been obtained for discharge of effluent etc., or can be deemed to have been obtained and if the treatment plants are working satisfactorily, the petitioner shall be entitled to rebate according to the provisions of rules for that period.
" It follows therefrom that the Division Bench refused to grant rebate to the extent of seventy per cent for want of consent under section 25 or 26 of the 1974 Act.
Feeling aggrieved by the Judgment and order passed by the Division Bench of the High Court, the appellant pre ferred special leave petitions (Civil) Nos. 1429 and 2157 of 1989 challenging the dismissal of the said two writ peti tions.
During the pendency of these proceedings several assessment orders came to be made for the subsequent periods upto may, 1989 for the water consumed at the appellant 's Thermal Units.
The Assessing Authority also refused to grant rebate, The appellant preferred appeals against the assess ment orders passed from time to time but to no avail.
In stead of approaching the High Court the appellant has filed Special Leave Petitions Nos. 3223, 3262, 128 3272, 4599 and 4600 of 1990 in this Court against the said assessment orders as well as the refusal to grant rebate on the ground that similar questions were involved in the earlier two special leave petitions which were pending in this Court.
We have granted special leave in all cases under Article 136 of the Constitution and we now proceed to dis pose them of by this common Judgment.
Dr. Singhvi, the learned counsel for the appellant con tended that the 1977 Act was an independent piece of legis lation and was not, what he called, 'the pari materia or parasite legislation ' to the 1974 Act, and hence once it is shown that the appellant had installed a plant for the treatment of a trade effluent within the meaning of section 7 of the 1977 Act read with rule 6 of the Rules, the appel lant was entitled to rebate regardless of whether or not the appellant had secured the consent of the State Board under section 25(1) of the 1974 Act.
He contended that the State Board 's consent became necessary only if an outlet new or altered was sought to be used for the discharge of sewage or trade effluent in the stream and not otherwise.
In the present case, contended Dr. Singhvi, the appellant had put up an independent sewage plant for the treatment of sewage and an independent neutralisation plant for the treatment of water discharged from the condensor cooling plant of the Thermal Station.
So far as the former is concerned the consumption of water is negligible; the bulk consumption takes place at the condensor cooling plant from where water is discharged after use at a temperature far above the standard of 40 C, which if discharged into the stream with out treatment would be harmful and injurious to acquatic organisms in the stream.
That is why the neutralisation plant was necessary to bring down the temperature of water to 40C or below before its actual discharge in the stream.
At the point where this water merges into the stream its temperature is below 40 C and therefore it ceases to be a contaminated trade effluent.
Since the outlet is used for the discharge of this water which is no more polluted it cannot be said that it is used for the discharge of a trade effluent within the meaning of section 25(1) of the 1974 Act.
According to Dr. Singhvi the enactment being essential ly for the prevention, control and abatement of pollution of streams and wells.
the duty to ensure the purity of streams and wells is cast on the State Board and for the effective performance of the same, section 25( 1) ' provides for previ ous consent if any new or altered outlet is intended to be brought use for the discharge of sewage or trade effluent.
But no such previous consent would be necessary if uncontam inated water is sought to be discharged into the stream.
In other words according to Dr. Singhvi the expression 'trade effluent ' in section 2(k) must be read 129 in the context of the purpose and object of the law and the mischief it seeks to curb.
Yet, by way of abundant caution, the appellant applied for the grant of consent under section 25/26 of the 1974 Act by the letter dated 9th April, 1984 for the neutralisation plant and by the letter dated I2th April, 1984 for the sewage plant meant for the colony of workmen situate within the power Station.
Under sub section (7) section 25 since the State Board neither granted nor refused consent within the period of four months from the receipt of the applications, it must be deemed to have been granted unconditionally on the expiry of the said period.
Lastly, he pointed out that during the pendency of the two writ petitions in the High Court, the Secretary of the State Board granted the required consent and conveyed it by his letter No. F. 5(B I4)RSEB/Tech/86/11472 dated 24th March, 1988.
Therefore, when the Division Bench of the High Court disposed of both the writ petitions the consent of the State Board under section 25(1) was already granted and hence the High Court was not right in making the observations it made in paragraphs 7 and 9 of the impugned judgment.
We may clarify that in the present appeals we are not concerned with the legality and validity of the levy of cess.
Dr. Singhvi, however, stated that the appellant re served the right to challenge the validity of the 1977 Act, if the interpretation placed by the authorities below on the true scope and meaning of section 7 read with rule 6 is found to be correct.
We may state that since we are not required to go into the question of Parliament 's competence to enact the 1977 Act, we do not propose to delve into this aspect of the matter.
Now, on a plain reading of sub section (1) of section 25 it becomes clear that the previous consent of the State Board is necessary where any new or altered outlet is pro posed to be used for the discharge of sewage or trade efflu ent into a stream or well.
If what is discharged in the stream or well is not a pollutted 'trade effluent ' (section 2(k)) or a 'sewage effluent ' (section 2(g)), can there be any question of seeking the previous consent of the State Board? The appellant has a separate sewage plant.
Since the bulk of the water is consumed at the condensor cooling plant and the same is recycled into the stream, the question is whether what is discharged in the stream can be said to be a trade effluent? Dr. Singhvi emphasised that the consent of the State Board would not be necessary under section 25(1) for the discharge of that recycled water, unless it is shown that what the appellant discharged in the stream or river was polluted water, According to Dr. Singhvi, the use of water at the condensor cooling plant merely raises the temperature of water above the tolerance limit 130 of 400 C. if the water is discharged in the river or stream before its temperature is reduced to 400 C or below, it may well be contended that within the broad meaning of the expression 'pollution ' in section 2(e), it was imperative for the appellant to obtain the previous consent of the State Board for making use of that outlet.
But if, on the other hand, it is shown that the temperature of water is brought down to the prescribed standard and the water is no more harmful or injurious to acquatic organisms in the river or stream i.e. is not polluted, the discharge of such water cannot be equated with discharge of a trade effluent.
This raises a mixed question of law and fact, viz., whether the recycled water returned to the stream in the same condition in which it was drawn with the temperature reduced to less than 400 C, can still be said to be a 'trade effluent ' requiring consent under Section 25( 1)? It may, in this context be mentioned that samples of the trade effluent were collected by the State Board for analysis on 24th May, 1984.
By letter dated 3rd December, 1984, the appellant requested the Assistant Engineer, State Board, to supply a copy of the analysis report which was refused by the letter dated 26th December, 1984.
The appellant was informed that the monitor ing results conducted by the Board .were not supplied to the concerned industries.
He added that the appellant could get the sample tested, if so desired, at the Board 's Laboratory on payment basis.
We think that if the Board was in posses sion of this vital information, it should have in all fair ness brought it on record rather than withhold it.
If that information was available on record Dr. Singhvi 's contention could have been met.
We are, however, not inclined to raise any adverse inference as was suggested.
We now come to the second limb of Dr. Singhvi 's submis sion.
According to him, section 7 of the 1977 Act is not dependent on the Board 's consent under section 25(1) of the 1974 Act.
In fact neither section 7 nor rule 6 speak about the same.
All that section 7 says is that any person or local authority which is liable to pay cess can claim rebate of 70% of the cess payable by him or it, if he or it has installed a plant for the treatment of sewage or trade effluent, as the case may be.
A plant has undoubtedly been installed for the treatment of sewage and no dispute in that behalf was raised before us.
However, as the bulk consump tion of water from the river is used at the condensor cool ing plant the question is whether the appellant can be said to have installed a plant for the treatment of a trade effluent.
The Appellate Authority took the view that a 150 ft. long channel meant for carrying the trade effluent cannot be described as a treatment plant.
The appellant contended that the treatment plant installed by it comprises of an 131 arrangement to lift the water to a height of 22 ft. and then drop it from that height into an open channel so that it cools down on coming in contact with the atmosphere and then flows towards and into the river.
It would appear that this arrangement was not specifically brought to the notice of the authorities below including the High Court and it seems the authorities decided the question of the existence of the treatment plant on the premise that it consisted of merely a single 150 ft. long channel.
However, this aspect has to be looked into.
The High Court has, however, taken the view that in the absence of consent under Section 25( 1 ), the appellant is not entitled to rebate.
We find it difficult to agree with this view.
Section 7 as well as Rule 6 do not envisage the Board 's consent under Section 25(1) of the 1974 Act as a sine qua non.
Under section 7 the consumer has only to show that he has installed a plant for the treatment of sewage or trade effluent and that it functioned successfully during the relevant period to earn rebate.
Section 25(1) operates in a different field and has nothing to do with a plant installed for the treatment of a trade effluent although the grant of consent to a new outlet can be conditional on the existence of a plaint for the satisfactory treatment of effluents to safeguard against pollution of the water in the stream.
The High Court refused the claim for rebate as it erroneously thought that the prior consent of the State Board was a must.
That is why in the concluding part of the Judgment it observed that if the consent is subsequently obtained or deemed to be obtained and the plant is working successfully, the appellant will be entitled to rebate.
Since we are of the view that the Board 's consent under Section 25(1) was not imperative, we think that that part of the High Court 's order cannot be sustained.
So far as the 1977 Act is concerned it would be neces sary to consider the true scope and meaning of section 7 and rule 6.
On a plain reading of the said provisions it would be necessary to decide (i) whether water discharged from the condensor cooling plant can be said to be a 'trade effluent ' by reason only of the fact of its temperature being above the prescribed standard, (ii) whether but for the treatment given to it as described by the appellant and set out above such water would have been discharged in the stream or river at a temperature above 40 deg.
C, and (iii) whether the ar rangement made by the appellant as set out above can, there fore, be described as a plant for the treatment of a trade effluent.
These and the related questions must be answered to effectively deal with the appellant 's claim for rebate.
The authorities below including the High Court have not applied their minds to these essential for deciding the question of grant or refusal of 132 rebate.
If it is found that the plant in question is one for the treatment of a trade effluent, the appellant would be entitled to rebate notwithstanding the absence of consent under section 25(1) of the 1974 Act.
We feel that the par ties did not focus their attention on these vital aspects and, therefore, failed to place on record the material essential for deciding the application for grant of rebate.
In the circumstances, we are left with no alternative but to remit the matter to the Assessing Authority with a direction to permit the appellant as well as the State Board to place on record such material as is considered relevant and there after give the parties an opportunity of being heard before deciding the matter.
The Assessing Authority should do so without being influenced by the previous orders of the authorities as well as the High Court.
In the meantime i.e. till the Assessing Authority decides the matter afresh, the appellant will continue to pay 30% of the cess amount and will file an undertaking in this Court within eight weeks from today to the effect that in the event the appellant is finally found liable to pay the balance of 70% the appellant will pay the same with interest at 15% per annum within six months from the final determination.
The appeals are allowed accordingly.
Having regard to the facts and circumstances of these cases, we make no order as to costs.
Y. Lal Appeals allowed.
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The Water (Prevention & Control of Pollution) Act, 1974 was enacted inter alia to provide for the prevention and control of water pollution, the maintaining or restoring of wholesomeness of water, etc.
Section 25 of the said Act provides that no person shall without the consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or trade effluent into a stream or well, or begin to make any new discharge of sewage or trade effluent into a stream or well.
Section 26 lays down that persons discharging sewage or trade effluent into a stream or well before the commencement of the Act shall apply for consent within a period of three months of the Constitution of State Board.
Thereafter the was enacted to provide for the levy and collection of cess on water consumed by persons carrying on certain industries, Power (Thermal & Diesel) Generating Industry was one such industry included at item No. 14 in Schedule I to the Act.
Section 3 of the 1977 Act provides that there shall be levied and collected a cess for the purposes of the 1974 Act and utilisation thereunder.
The cess under the Act is made payable by every person carrying on any specified industry and the same has to be calculated on the basis of the water actually consumed at rates speci fied in the Schedule.
Section 7 of the Act provides for rebate.
The appellant has established a Thermal Power Station on the bank of River Chambal for generating energy.
It consumes water from the river for condensor cooling.
After the water is used for cooling, it is treated as a trade effluent in the neutralisation plant before it is discharged into the river.
According to the appellant, the temperature, 121 after following the prescribed procedure, is brought down to below 40 C, when it is discharged into the river.
The appel lant had also installed a 0.4 MGD plant for treatment of sewage.
According to the appellant both these plants are working satisfactorily.
The appellant, as required by the rules, submitted monthly returns of the water consumed from the river for its Thermal Station for the period from July 1983 to January 1984 and February 1984 to June 1984.
The respondent authority.
assessed the cess at Rs.13,13,710 for the first period and Rs.9,42,013 for the subsequent period.
No rebate was allowed under Section 7 of the 1977 Act on the ground that the so called neutralisation plant was not a plant for the treatment of sewage or trade effluent within the meaning of the said provision.
The appellant filed an appeal under section 13, in respect of the cess claimed for the period July 1983 to January 1984, but the appellate authority dismissed the same holding that the cess was correctly assessed and that the appellant was not entitled to rebate.
As regards the period from February 1984 to June 1984.
the appellant submitted a review petition which was rejected by respondent No. 2.
Thereupon, the appellant filed separate writ petitions before the High Court challenging the assessment orders.
Both the writ petitions were dismissed by the High Court.
The High Court opined that there was nothing on record to show that the appellant had applied for consent of the State Board to install a plant either under section 25 or section 26 of the 1974 Act nor was there any evidence to show that such consent was given.
It accordingly held that the author ities under the Act had rightly disallowed the claim of rebate to the appellant under section 7.
Against the orders of the High Court as also against various assessment orders which were passed subsequent to the orders of the High Court the appellant has filed these appeals, after obtaining special leave.
Allowing the appeals, and remanding the cases to the Assessing Authority for fresh disposal, this Court HELD: A plant has undoubtedly been installed for the treatment of sewage and no dispute in that behalf was raised.
However, as the bulk consumption of water from the river is used at the condensor cooling plant the question is whether the appellant can be said to have installed a plant for the treatment of a trade effluent.
[130G] The Appellate Authority took the view that a 150 fl.
long channel meant for carrying the trade effluent cannot be described as treatment plant.
The appellant contended that the treatment plant installed 122 by it comprised of an arrangement to lift the water to a height of 2211.
and then drop it from that height into an open channel so that it cools down on coming in contact with the atmosphere and then flows towards and into the river.
[130H; 131A] Section 7 as well as Rule 6 do not envisage the Board 's consent under Section 25(1) of the 1974 Act as a sine clua non.
Under Section 7 the consumer has only to show that he has installed a plant for the treatment of sewage or trade effluent and that it functioned successfully during the relevant period to earn rebate.
Section 25(1) operates in a different field and has nothing to do with a plant installed for the treatment of a trade effluent although the grant of consent to a new outlet can be conditional on the existence of a plant for the satisfactory.
treatment of effluents to safeguard against pollution of the water in the stream.
[131C E] Since the Board 's consent under Section 25(1) was not imperative that part of the High Court 's order cannot be sustained.
[131E]
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vil Appeal Nos.
4043 and 1370 of 1987.
221 From the Judgment and Order dated 20.11.1987 and 4.3.1987 of the Jammu & Kashmir High Court in L.P.A. No. 20/1987 and in Suit No. 235/86.
K. Parasaran, Ms. section Janani and Ms. Urmila Kapur for the Appellant in C.A. No. 4043/87.
P. Chidambaram, P.H. Parekh and Ms. Gitanjali Mathrani for the Appellants in C.A. No. 1370/87.
M. Beg, E.C. Agarwala, Atul Sharma, Vijay Pandita and Ms. Purnima for the Respondents in C.A. No. 4043/87.
E.C. Agarwala and Atul Sharma for the Respondents in C.A. No. 1370/87.
Ashok Mathur for the State of Jammu and Kashmir and Advocate General.
The Judgment of the Court was delivered by THOMMEN, J.
Civil Appeal No. 4043 of 1987.
The question which arises in this appeal is as regards the validity of clause (iii) of sub section (3) of Section 1 of the Jammu & Kashmir Houses and Shops Rent Control Act, 1966 (hereinafter referred to as "the Act").
The challenge against the clause on the ground of its alleged violation of Article 14 of the Constitution was rejected by the High Court of Jammu & Kashmir.
The High Court, following its earlier decision in The J & K Bank Ltd. vs State of J & K & Another, AIR 1987 J & K 18, upheld the validity of the clause.
The impugned provision, as it stood at the relevant time, reads: "1(3) Notwithstanding anything contained in sub section (2), nothing in this Act shall apply to (ii) Omitted (iii) any tenancy in respect of any house.
or shop where the income of the tenant, whether accruing within or outside 222 the State, exceeds rupees 40,000 per annum; Explanation: the word 'income ' means 'net income. '" The appellant, the Delhi Cloth & General Mills Limited is the tenant of the building in question.
Its claim for the protection of the Act was disallowed by the courts below on the ground that clause (iii) of sub section (3) of Section 1, read with the Explanation, was attracted in respect of the appellant.
According to the appellant, the impugned clause is discriminatory and arbitrary because it draws an artificial distinction between tenants on the basis of their income.
Those tenants earning net income below Rs.40,000 per annum are fortunate enough to be protected by the beneficial provisions of the Act, while a person like the appellant whose annual net income is undoubtedly in excess of the statutory limit of Rs.40,000, is unreasonably and unfairly denied the protection of the Act.
This statutory discrimina tion, it is contended, places persons like the appellant at the mercy of the landlords who can easily evict them by recourse to the far less restrictive provisions of the and on the strength of their agreements of lease.
Counsel for the appellant submits that the impugned clause does not take into account the nature of the build ing, but only the income of the tenant.
The income of the landlord himself is irrelevant.
The protection of the Act is withheld or extended, dependent solely on the financial capacity of the tenant and without regard to the need of the landlord or the age or other conditions of the building or any other factor.
Treating tenants differently with refer ence to their annual income is not an intelligible classifi cation, for the income of a tenant may vary from year to year, depending upon the nature of his business and other factors.
This variation in income may expose him to eviction in a particular year when the business is prosperous but protects him from eviction when the business declines and income falls.
Furthermore, counsel says.
"income" is not a clear and precise concept.
Limiting it to net income does not make it clearer.
What are the permissible deductions to arrive at the "net", the Act does not say.
The Section is invalid because it is too broad or vague.
Any classification based on such vague differentia is unintelligible and, therefore, violative of Article 14.
In any view, counsel submits, the classification sought to be made between per sons falling on either side of the 223 specified income has no reasonable relation to the object sought to be achieved by the statute.
Counsel relies on the observation of this Court in Rattan Arya & Others vs State of Tamil Nadu & Another, ; declaring Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as unconstitutional.
Counsel also relies upon the decision of this Court in Motor General Traders & Another vs State of Andhra Pradesh & Others, ; declaring Section 32(b) of the A.P. Buildings (Lease, Rent and Evic tion) Control Act, 1960 as unconstitutional.
These decisions, in our view, are easily distinguisha ble.
In Rattan Arya (supra) this Court stated that a dis tinction between residential buildings leased on rent not exceeding Rs.400 per month and all other buildings whether residential or non residential was an unreasonable classi fication.
There was no reason why non residential buildings leased on rent of Rs.400 per month or less should be treated differently from residential buildings of like rent or why in the case of residential buildings the limit should have been limited to Rs.400 per month.
To so restrict the protec tion of the Act was an unreasonable classification.
In the Motor General Traders (supra), this Court stated that to arbitrarily prescribe a cut off date, i.e., August 26, 1957, for denying the protection of the Act, without regard to the age of the building or to the extent of realisation of the investment by the owner was an unreasonable classification.
These decisions do not, in our view, support the contentions of the appellant.
On the other hand, a classification with reference to economic realities was upheld by this Court in Kerala Hotel & Restaurant Association & Ors.
vs State of Kerala & Ors., [1990] 1 JT SC 324.
This Court stated "those who can afford the costlier cooked food, being more affluent, would find the burden lighter.
This object cannot be faulted on princi ple and is, indeed, laudable".
Though that principle was stated in a different context, significantly this Court accepted a classification based on financial capacity.
The classic and oft repeated test to be applied when the constitutionality of legislation is questioned with refer ence to Article 14 of the Constitution is what is stated by this Court in Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar & Others, S.R. Das, CJ.
stated: "In order, however, to pass the test of permissible classi fication two conditions must be fulfilled, namely, (i) that the 224 classification must be rounded on an intelligible differen tia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
" The object of the enactment in question is undoubtedly to protect the weaker section of tenants from.
unreasonable eviction and unfair rent.
The legislature, at the same time, did not desire to discourage persons from constructing buildings.
The twin legislative object is the protection of economically weaker tenants and encouragement of construc tion of buildings.
While protection is thus afforded to deserving tenants, construction of new buildings is encour aged by exempting buildings occupied by richer classes of tenants from the provisions of the Act.
While a building is covered by the Act when occupied by a tenant whose annual net income is less than the specified amount, the protection is withheld when the same building is occupied by a richer tenant whose annual net income is higher than the specified amount.
Where a building is occupied by more than one ten ant, the applicability of the Act to each of them would depend upon his net income.
It is the tenant that the legis lature intends to protect and not the landlord or his build ing.
The test adopted by the legislature for this purpose is with reference to the tenant 's net income, whether accruing inside or outside the State, as on the date of the land lord 's application for eviction as well as on the date of the decree for eviction.
The legislative object is, there fore, to protect tenants who are economically weaker in comparison to those affluent tenants falling outside the specified limit of income, and at the same time to encourage construction of new buildings which will result in better availability of accommodation, employment opportunity and economic prosperity.
This is a reasonable classification which does not suffer from the vice of being too vague or broad.
Classification based on income is well known to law.
Such classification has a reasonable relation to the twin legislative object mentioned above.
We see nothing unreason able or irrational or unworkable or vague or unfair or unjust in the classification adopted by the impugned provi sion.
Nor is there lack of clarity in the concept of "income" or "net income".
Income is money or other benefit periodi cally received.
It is profit or revenue and not capital.
It is a gain derived from capital or labour or both.
Net income is income obtained after deducting all expenses incurred for the purpose of earning the income.
It is income minus oper ating expenses.
The concept of net income is what it is 225 ordinarily understood to be in common parlance, and not necessarily limited by the technicalities of any fiscal enactment.
See in this connection the observation of the Jammu & Kashmir High Court in Banarasi Das vs Jagdish Raj Kohli, AIR 1960 J & K 5.
The legislature in its wisdom is presumed to understand and appreciate correctly the problems of the State and the needs of the people made manifest by experience.
Absent blatant, disregard of constitutional provisions, legislative innovation by social and economic experimentation must be permitted to continue without judicial interference.
The High Court, as stated earlier, followed its earlier decision on the construction of the Section in The J & K Bank Ltd. vs State of J & K & Another, AIR 1987 J & K 18.
In that case, speaking for the Division Bench, Anand, CJ.
stated as follows: "In our opinion, the challenge to vires of section 1(3)(iii) of the Act is not well founded.
Undoubtedly, the Act is a piece of social and beneficial legislation.
The Legislature knows and correctly appreciates the needs of its people.
In its supreme wisdom it denied the protection of the Act to ten ants whose annual income exceeds Rs.40,000.
Social legisla tion of this type is designed to protect the interest of a class of society who, because of their economic conditions, deserves such protection against their arbitrary eviction.
The legislation is intended to protect weaker and poorer classes of the tenants and there is, therefore, an intelli gible differentia between the tenants whose annual income is Rs.40,000 and those whose annual income is more than Rs.40,000.
In construing article 14, the aid whereof has been pressed into service by the learned counsel, the Court is not required to adopt a doctrinaire approach which would choke the beneficial legislation.
It is open to the legisla ture to recognise the degree of harm and while doing so it can always make reasonable classification.
Article 14 for bids class legislation but no reasonable classification.
With a view to pass the test of reasonable classification, there must exist intelligible differentia between persons or things grouped together from those who have been left out and there must be a reasonable nexus with the object to be achieved by the legislation.
Keeping in view the object which the legislation seeks to achieve, it can be safely said that there is reason 226 able nexus between the classification made by the legisla ture in the impugned section and the object sought to be achieved.
We also find that there is an intelligible differ entia between the tenants who are sought to be protected by the Act from those who are denied the protection of the Act.
We are in complete agreement with what has been stated by the learned Chief Justice.
Accordingly, we see no merit in this appeal.
It is dismissed with costs here and in the courts below.
Civil Appeal No. 1370 of 1987.
This appeal is brought by a nationalised bank.
In view of our judgment in Civil Appeal No. 4043 of 1987, ' we dis miss this appeal with costs here and in the High Court.
N.P.V. Appeals dis missed.
|
The appellant, a tenant, claimed protection of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966.
The courts below disallowed the claim, on the ground that clause (iii) of sub section (3) of Section 1, read with the Expla nation was attracted in respect of the appellant.
The appellant challenged the validity of clause (iii) of sub section (3) of Section 1 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 before the High Court on the ground that it violated Article 14 of the Constitution.
The High Court, following its earlier decision in the J & K Bank Lid.
vs State of J & K & Another, AIR1987 J & K 18 upheld validity of the clause.
In the appeal before this Court, the appellant tenant contended (i) that the clause was discriminatory and arbi trary, because it drew an artificial distinction between tenants on the basis of their income, in that while those tenants earning net income below Rs.40,000 per annum were protected by the beneficial provisions of the Act, those with annual net income in excess of the statutory limit of Rs.40,000 were unreasonably and unfairly denied the protec tion and this statutory discrimination placed them at the mercy of the landlords, who could easily evict them by recourse to the far less restrictive provisions of the Transfer of 219 Property Act, 1882 and on the strength of their agreements of lease, (ii) that the clause did not take into account the nature of the building, or the need and income of the land lord or any other factor and withheld or extended protection solely on the financial capacity of the tenant, which could vary from year to year, depending upon the nature of his business and other factors, thus exposing the tenant to eviction when the business was prosperous, but protecting him when the business declined and income fell, (iii) that "income" was not a clear and precise concept; limiting it to net income did not make it clearer, and the Act did not indicate the permissible deductions for arriving at the "net" and (iv) that the Section was invalid because it was too broad or vague and any classification based on such vague differentia was unintelligible and, therefore, viola tive of Article 14; and in any view, the classification sought to be made between persons falling on either side of the specified income had no reasonable relation to the object sought to be achieved by the statute.
Dismissing the above appeal, and another similar appeal (Civil Appeal No. 1370 of 1987), this Court, HELD: 1.1 The object of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 is undoubtedly to protect the weaker section of tenants from unreasonable eviction and unfair rent.
At the same time, the legislature did not desire to discourage persons from constructing buildings.
Thus, while protection is afforded to deserving tenants, construction of new buildings is encouraged by exempting buildings occupied by richer classes of tenants from the provisions of the Act.
While a building is covered by the Act when occupied by a tenant whose annual net income is less than the specified amount, the protection is withheld when the same building is occupied by a richer tenant whose annual net income is higher than the specified amount.
Where a building is occupied by more than one tenant, the applica bility of the Act to each of them would depend upon his net income.
It is the tenant that the legislature intends to protect and not the landlord or his building.
The test adopted by the legislature for this purpose is with refer ence to the tenant 's net income, whether accruing inside or outside the State, as on the date of the landlord 's applica tion for eviction as well as on the date of the decree for eviction.
[224B E] 1.2 The legislative object is, therefore, to protect tenants who are economically weaker in comparison to those affluent tenants falling outside the specified limit of income, and at the same time to encourage construction of new buildings which will result in better availability of 220 accommodation, employment opportunity and economic prosperi ty.
This is a reasonable classification which does not suffer from the vice of being too vague or broad.
[224E F] 1.3 Classification based on income is well known to law.
Such classification has a reasonable relation to the twin legislative object of protecting economically weaker tenants and encouraging new constructions.
There is nothing unrea sonable or irrational or unworkable or vague or unfair or unjust in the classification adopted by Section 1(3)(iii) of the Act.
[224F; 22SD] 1.4 The legislature in its wisdom is presumed to under stand and appreciate correctly the problems of the State and the needs of the people made manifest by experience.
Absent blatant disregard of constitutional provisions, legislative innovation by social and economic experimentation must be permitted to continue without judicial interference.
[225B] The J & K Bank Ltd. vs State of J & K & Another, AIR 1987 J & K 18, approved.
Rattan Arya & Others vs State of Tamil Nadu & Another, ; and Motor General Traders & Another vs State of Andhra Pradesh & Others, ; , distin guished.
Kerala Hotel & Restaurant Association & Ors.
vs State of Kerala & Ors., [1990] 1 JT SC 324, relied on.
Krishna Dalmia vs Shri Justice S.R. Tendolkar & Others, ; , referred to. 2.
There is no lack of clarity in the concept of "in come" or net income.
Income is money or other benefit peri odically received.
It is profit or revenue and not capital.
It is a gain derived from capital or labour or both.
Net income is income obtained after deducting all expenses incurred for the purpose of earning the income.
It is income minus operating expenses.
The concept of net income is what it is ordinarily understood to be in common parlance, and not necessarily limited by the technicalities of any fiscal enactment.
[224G H] Banarasi Das vs Jagdish Raj Kohli, AIR 1960 J & K 5.
re ferred to.
|
vil Appeal No. 277 1 of 1981.
From the Judgment and Order dated 5.2.1980 of the Andhra Pradesh High Court in S .A.
No. 526 of 1977.
Jagdish K. Agarwal (N.P.) for the Appellant.
A Subba Rao for the Respondents.
KANIA, J. This is an appeal by special leave from the decision of a learned Single Judge of the Andhra Pradesh High Court in Second Appeal No. 526 of 1977.
As we are, with respect, in agreement with the conclu sions arrived at by the learned Single Judge of the High Court, we propose to set out only the bare facts essential for the purposes of our judgment.
The appellant was the plaintiff and the respondent was the defendant in Suit.
O.S. No. 789 of 1973 filed in the Court of the Third Assistant Judge, City Civil Court, Hyd erabad.
The appellant prayed for a decree for recovery of possession of the suit premises from the respondent and for mesne profits till the delivery of possession of the prem ises.
The case of the appellant was that she was the owner of the suit premises and the respondent was in the occupa tion of the said premises on payment of Rs.30 per month.
The respondent had been 215 irregular in the payment of the said rent and had been a source of perpetual nuisance.
It was on this ground that the eviction of the premises was sought by the appellant.
In his written statement the respondent took a preliminary objec tion that the City Civil Court had no jurisdiction to enter tain the suit as the suit fell within the jurisdiction of the Rent Controller at Hyderabad.
Two petitions had earlier been filed by the appellant before the Rent Controller for eviction of the respondent and the Rent Controller had rejected the same on the ground that the purported tenancy of the respondent was hit by section 3 of the A.P. Rent Control Act and hence, the eviction suit was not entertain able by the Court of Rent Controller.
This conclusion was arrived at on a plea to the said effect taken by the re spondent.
In the Court of learned Third Assistant Judge of the City Civil Court at Hyderabad the respondent took up the plea that the suit fell exclusively within the jurisdiction of the Rent Controller and hence the City Civil Court had no jurisdiction to entertain the suit.
Certain pleas were made regarding amendments in the law with which we are not con cerned in this appeal.
What is material to note for our purposes is that the learned Assistant Judge took the view that as the respondent had, before the Rent Controller, taken up the plea that it was not the Rent Controller but the City Civil Court which had the jurisdiction to entertain the eviction petition against him, and the said plea was upheld, it was not open to the respondent to take up the inconsistent plea before the City Civil Court that it was the Rent Controller and not the City Civil Court which had jurisdiction to entertain the proceedings.
It was held that the respondent could not be allowed to approbate and repro bate and that he was estopped by way of pleading to take up an inconsistent plea regarding jurisdiction.
On the basis of this conclusion, and other conclusions with which we are not concerned, the suit was decreed by the learned Assistant Judge in favour of the appellant.
The decision of the learned Assistant Judge was upheld in an appeal filed by the respondent in the Court of the learned Additional Chief Judge of the City Civil Court at Hyderabad.
On a second appeal preferred by the respondent, the learned Single Judge of the High Court took the view that in matters of jurisdiction the question of estoppel does not arise.
If the City Civil Court has no jurisdiction to entertain the suit, the doctrine of estoppel could not be invoked so as to confer jurisdiction on the Court of City Civil Court.
On the question of jurisdiction the learned Judge took the view that the City Civil Court had no jurisdiction to entertain the suit as it lay exclusively within the jurisdiction of the Rent Controller.
216 Learned counsel for the appellant submitted that the learned Judge of the High Court was in error,as the earlier decisions of the Rent Controller to the effect that it was the City Civil Court and not the Rent Controller who had the jurisdiction to entertain the suit for eviction filed by the appellant against the respondent, constituted res judicata between the parties on the question of jurisdiction.
It was submitted by him that, even if that decision was wrong, the issue of jurisdiction was finally decided between the par ties and that decision was that it was the Civil Court and not the Rent Controller that had the jurisdiction to enter tain and dispose of the suit for eviction.
He further sub mitted that the respondent could not be permitted to take inconsistent pleas as he was barred by the principles of estoppel from taking up the plea before the Civil Court that it was the Rent Controller who had the exclusive jurisdic tion to entertain the suit.
He placed reliance on a decision rendered by a Division Bench comprising two learned Judges of this Court in Avtar Singh and Others vs Jagjit Singh and Another, ; which took the view that the Civil Court 's decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit.
In that case the Civil Court declined jurisdiction.
The Civil Court took the view that it had no jurisdiction to try the suit in question and directed the return of the plaint for representation to the appropriate Revenue Court.
When the claim was filed in the Revenue Court, the Court took the view that it had no juris diction to try the claim.
Thereupon, a suit was again insti tuted in the Civil Court for the lame relief.
This suit failed throughout on the ground of res judicata.
I?he High Court affirmed the dismissal and the Division Bench of this Court took the view that the High Court was right in taking the view hat the principles of res judicata were applicable to the issue of jurisdiction.
In our opinion, the contention of learned counsel for the appellant cannot be upheld.
We find that in Mathura Prasad Bajoo Jaiswal and Others vs Dossibai N.B. Jeejeebhoy; , at p. 836 a Bench comprising three learned Judges of this Court has taken the view that a decision on the question of jurisdiction of the court or a sure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit.
The Court observed: "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correct ness or otherwise of the earlier judgment.
The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litiga tion between the same parties be regarded as finally decided and cannot be reopened.
A mixed question of law and fact determined 217 in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceed ing between the same parties.
But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in section 11 of the Code of Civil Procedure means the right litigated between the par ties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.
Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of proce dure cannot supersede the law of the land.
" The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta vs Gobind Ram Bohra (dead) through his Lrs.; , We find that the decision of three learned Judges of this Court in Mathurn Prasad Bajoo Jaiswal and Others vs Dossibai N.S. Jeejeebhoy, has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh and Others vs Jagjit Singh and Another, and hence, to the extent, that the judg ment in Avtar Singh 's case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law.
In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.
It is well settled that there can be no estop pel on a pure question of law and in this case the question of jurisdiction is a pure question of law.
In our view, therefore, the High Court was, with re spect, right in its conclusions arrived at and the appeal must be dismissed.
The appeal is dismissed.
Looking to the facts and cir cumstances of the case there will be no order as to costs.
G.N. Appeal dis missed.
|
The Respondent landlord filed a suit under the Andhra Pradesh Rent Control Act for recovery of possession and for mesne profits.
The apPellant defendant raised a preliminary objection that the City Civil Court had no jurisdiction to entertain the suit.
In the two eviction petitions filed earlier by the appellant, the Respondent took the plea that since the alleged tenancy was hit by Section 3 of the A.P. Rent Control Act, eviction suit was not entertainable by the Rent Controller.
Decreeing the suit in favour of the appellant, the trial Court held that it was not oPen to the Respondent to take such inconsistent plea regarding jurisdiction; that he cannot be allowed to approbate and reprobate and he was estopped from doing so.
On apPeal by respondent, the deci sion was upheld by the First Appellate Court.
On a second apPeal preferred by the respondent, the High Court reversed the trial court 's order.
Aggrieved by the decision of the High Court, the appel lant preferred this apPeal, by special leave, contending that the principles of Res Judicata and estopPel were ap plicable.
Dismissing the apPeal, this Court, HELD: 1.
A court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.
It is well settled that there can be no estop pel on a pure question of law.
[217F] 214 Mahtura Prasad Bajoo Jaiswal and Ors.
vs Dossibai N.B. Jeejeebhoy; , ; Sushil Kumar Mehta vs Gobind Ram Bohra (dead) thro ' his Lrs.; , ; relied on.
Avtar Singh and Ors.
vs Jagjit Singh and Anr., ; ; referred to.
In the instant case, the question of jurisdiction is a pure question of law.
The High Court was right in its conclusions that in matters of jurisdiction to entertain the suit, doctrine of estoppel could not be invoked; and that the City Civil Court had no jurisdiction to entertain the suit, as it lay exclusively within the jurisdiction of the Rent Controller.
[216A B]
|
ivil Appeal Nos.
1431 33(NT) of 1976.
Appeals by Certificate from the Judgment and Order dated 27.2.
1976 of the Ahmedabad High Court in Income Tax Refer ence Nos. 129 and 168 of 1974.
J.H. Parekh.
P.H. Parekh and Ms. Shalini Soni, for the Appellant.
S.C. Manchanda.
K.P. Bhatnagar and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
These appeals under certificate arise from the common judgment of the High Court of Gujarat in the Commissioner of Income Tax, Gujarat 111 vs Poonjabhai Vanma lidas.
The assessee is the same in all the cases.
The assessment years in question are 1964 65.
1965 66 and 1967 68.
In the relevant previous years.
the assessee received certain amounts and they were assessed under sec tion 41(4) of the Income Tax Act, 1961 (hereinafter referred to as the "1961 Act").
The contention of the assessee was that he was not assessable under section 41(4) of the 1961 Act because these amounts had been written off as bad debts in the year 1959 60 and his claim tot deduction, though initially disallowed by the Income Tax Officer.
was subse quently allowed by the Income Tax Appellate Tribunal in I.T.A. Nos.
673 676 (AHD) dated 12.7.
The business of the assessee had discontinued prior to the previous year in which any part of the amount was received, and consequently, it was contended.
these amounts when received were not assessable to income tax under section 41(4) of the 1961 Act as that section was not in pari materia with section 10(2)(xi) of the Income Tax Act, 1922 ( '1922 Act ') in terms of which the amounts had been written off as bad debts.
This contention was rejected by the Income Tax Officer and the amounts were brought to tax.
The orders of assessment were confirmed by the 209 Appellate Assistant Commissioner.
On further appeal by the assessee, the Tribunal held, accepting the assessee 's con tention, that the amounts could not be taxed under section 41(4) of the 1961 Act, for that section had no application to amounts written off in 1959 60 in terms of section 10(2)(xi) of the 1922 Act when it was in force.
On a refer ence, the High Court held that the amounts in question were includable in computing the taxable income of the assessee in respect of the relevant years under section 41(4) of the 1961 Act.
The questions referred were accordingly answered by the High Court against the assessee and in favour of the Revenue.
Hence the present appeals.
Section 10(2)(xi) of the 1922 Act reads: "10.
Business: (1) . . . . . . (2) Such profits or gains shall be computed after making the following allowances, namely: (xi) when the assessees 's accounts in respect of any part of his business, profession or vocation are not kept on the cash basis, such sum.
in respect of bad and doubtful debts, due to the assessee in respect of the part of his business, profession or vocation, and in the case of an assessee carrying on a banking or money lending business.
such sum in respect of loans made in the ordinary course of such business as the Income tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the books of assessee: Provided that if the amount ultimately recovered on any such debt or loan is greater than the difference between the whole debt or loan and the amount so allowed, the excess shall be deemed to be a profit of the year in which it is recovered and if less, the deficiency shall be deemed to be a business expense of that year; There is no dispute that the assessee 's accounts were not kept on cash basis.
There is also no dispute that the assessee 's business had discontinued prior to the year of recovery of the amounts in question, If the amounts had been received prior to the repeal of the 1922 Act the entire transaction would have been covered by the provisions of 210 section 10(2)(xi) of that Act, and the business having been discontinued prior to the relevant years of receipt, these amounts would not have been taxable.
See Commissioner of Income Tax, Madras vs Express Newspapers Ltd., But the amounts in question here were recovered after the coming into force of the 1961 Act which repealed the 1922 Act.
The question, therefore, is whether the amounts which had been written off in terms of section 10(2)(xi) of the 1922 Act, but subsequently received after the repeal of that provision.
could be brought to tax in terms of the relevant re enacted provisions.
Tax is sought to be levied under the 1961 Act in terms of section 41(4) which reads: "41.
Profits chargeable to tax . 4.
Where a deduction has been allowed in respect of a bad debt or part of debt under the provisions of clause (vii) of sub section (1) of section 36, then, if the amount subsequently recovered on any such debt or part is greater than the difference between the debt or part of debt and the amount so allowed, the excess shall be deemed to be profits and gains of business or profession, and accordingly charge able to income tax as the income of the previous year in which it is recovered, whether the business or profession in respect of which the deduction has been allowed is in exist ence in that year or not.
This sub section.
refers to the deduction allowed in respect of a bad debt under the provisions of section 36(1)(vii) of the 1961 Act which reads as follows: "36.
Other deductions (1).
The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28 (vii) subject to the provisions of sub section (2), the amount of any debt, or part thereof, which is estab lished to have become a bad debt in the previous year: 211 Significantly sub section (4) of section 41 of the 1961 Act specifically states that tax is attracted whether or not the business or profession in respect of which the deductions had been allowed continued to be in existence in the year of receipt.
This is a fundamental deviation from the earlier provision contained in section 10(2)(xi) of the 1922 Act.
Furthermore, sub section (4) of section 41 specifically says that the deductions should have been allowed in respect of a bad debt under the provisions of section 36(1)(vii) in order to attract section 41(4).
The assessee, therefore, contends that the relevant provisions of the two enactments are not in pari materia, and what has been allowed as a deduction in terms of section 10(2)(xi) of the 1922 Act cannot be brought to tax under section 41(4) of the 1961 Act.
Any order made under section 10(2)(xi) of the 1922 Act under which a debt was written off would not attract tax on recovery of the whole or part of such amount unless the business itself continued to exist at the time of the recovery.
Furthermore, the assessee contends that sub section (4) of section 41 of the 1961 Act is at tracted only where the bad debt was written off in terms of section 36(1)(vii) of that Act, and not in terms of section 10(2)(xi) of the 1922 Act, the provisions of which are not in pari materia with either section 36(1)(vii) or section 41(4).
Rejecting the contentions of the assessee, the High Court held that there was no inconsistency between the relevant provisions of the two enactments and that section 24 of the was attracted as a result of which the order in terms of which the amounts had been written off was deemed to have been made under the re enacted provisions, as contained in section 36(1)(vii), and consequently the amounts recovered on any such debt were chargeable under section 41(4).
Section 25 of the , in so far as it is material.
reads: "24.
Continuation of orders, etc., issued under enactments repealed and re enacted Where any Central Act or Regulation is, after the commencement of this Act, repealed and re enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye?law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re enacted, continue in force, and be deemed to have been made or issued under 212 the provisions so re enacted, unless and until it is super seded by any appointment, notification, order, scheme, rule, form or bye law made or issued under the provisions so re enacted . " The effect of section 24 of the , in so far as it is material, is that where the re pealed and re enacted provisions are not inconsistent with each other, any order made under the repealed provisions is deemed to be an order made under the reenacted provisions.
The question, therefore, is whether the provisions of the repealed section 10(2)(xi), under which the bad debts were written off as irrecoverable in the books of the assessee, are in terms re enacted by the repealing Act.
A comparative table furnished i.
The Law and Practice of Income Tax, Kanga and Palkiwala (Seventh Edition Volume II) shows that section 10(2)(xi) of the 1922 Act is equivalent to sections 36(1)(vii), 36(2) and 41(4) of the 196 1 Act.
The repealed section 10(2)(xi) is thus a composite section containing the ingredients of the re enancted sections 36(1)(vii), 36(2) and 41(4).
Consequently when a debt is written off by an order in terms of section 10(2)(xi) of the 1922 Act, the Income Tax Officer exercises the same power as he would have exercised on the enactment of section 36(1)(vii) of the 1961 Act.
These two provisions are, therefore, consistent with each other.
Section 36(1)(vii) is subject to the provisions of sub section (2) of that section.
Therefore, both sections 36(I)(vii) and 36(2) of the 1961 Act, being two of the ingredients of section 10(2)(xi) of the 1922 Act, must be read together with reference to an order under which debts had been written off.
Accordingly, in the light of section 24 of the , the relevant order made under section 10(2)(xi) of the 1922 Act with reference to which the debt in question had been written off, is deemed to be an order made under section 36(1)(vii) of the 1961 Act and such order is what is contemplated under section 41(4) of that Act.
Any amount which is recovered on any such debt is attracted by the provisions of section 41(4) of the 1961 Act and is, therefore, chargeable to tax in terms of that sub section to the extent of the 'excess ' specified therein.
The contentions of the assessee thus fail, and the appeals are accordingly dismissed.
No order as to costs.
P.S.S. Appeals dismissed.
|
Section 10(2)(xi) of the Income Tax Act, 1922 provided for deduction of bad and doubtful debts.
The proviso thereto laid down that if the amount ultimately recovered on any such debt was greater than the difference between the whole debt and the amount allowed the excess shall be deemed to be a profit of the year in which it was recovered.
These provi sions were re enacted in the Income Tax, Act, 1961 as section 36(1)(vii) provides, subject to the provisions of sub section
(2), for deduction of amount of any debt established to have become a bad debt in the previous year, whereas section 41(4) provides for bringing to tax amounts of such bad debts, if recovered subsequently, as the income of the previous year in which it was recovered, whether the business in respect of which the deduction had been allowed was in existence in that year or not.
Certain amounts which had been allowed to be written off as bad debts in terms of section 10(2)(xi) of the Income Tax Act, 1922 in the year 1959 60, but subsequently received by the assessee were sought to be brought to tax in the assessment years 1964 65, 1965 66 and 1967 68 under section 41(4) of the Income Tax Act, 1961.
The assessee 's business had discontin ued prior to the relevant years of recovery of the amounts.
The orders of assessment were confirmed by the Appellate Assistant Commissioner.
The Tribunal, however, held that the amounts could not be taxed under section 41(4) of the 1961 Act for that section had no application to amounts written off in 1959 60 in terms of section 10(2)(xi) of the 1922 Act when it was in force.
On a reference, the High Court held that the amounts in question were includable in computing the taxable income of the assessee in respect of the relevant years under section 41(4) of the 1961 Act.
It took the view that there was no incon sistency between the relevant provisions of the two enact ments and that section 24 of the was attracted as a result of which the order in terms of which the amounts 207 had been written off was deemed to have been made under the reenacted provisions, as contained in section 36(1)(vii).
In these appeals by certificate, it was contended for the appellant that the relevant provisions of the 1922 Act and 1961 Act were not in pari materia, that section 41(4) would be attracted only where the bad debt had been written off in terms of section 36(1)(vii), and that what has been allowed as a deduction in terms of section 10(2)(xi) of the 1922 Act could not on recovery be brought to tax under section 41(4) of the 1961 Act, unless the business itself had continued to exist at the time of recovery.
Dismissing the appeals, the Court, HELD: 1.
If the amounts had been received prior to the repeal of the 1922 Act the entire transaction would have been covered by the provisions of section 10(2)(xi) of the Act, and the business having been discontinued prior to the relevant years of receipt, these amounts would not have been taxable.
[209H; 210A] Commissioner of Income Tax, Madras vs Express Newspapers Ltd., referred to.
2.1 The effect of section 24 of the , in so far as it is material, is that where the re pealed and re enacted provisions are not inconsistent with each other, any order made under the repealed provisions would be deemed to be an order made under the re enacted provisions.
[212B] 2.2 Section 10(2)(xi) of the 1922 Act is equivalent to sections 36(1)(vii), 36(2) and 41(4) of the 1961 Act.
The repealed section 10(2)(xi) is thus a composite section containing the ingredients of the re enacted sections 36(1)(vii), 36(2) and 41(4).
Consequently, when a debt is written off by an order in terms of section 10(2)(xi) of the 1922 Act, the Income Tax Officer exercises the same power as he would have exercised on the enactment of section 36(1)(vii) of the 1961 Act.
These two provisions are, there fore, consistent with each other.
Section 36(1)(vii) is subject to the provisions of sub section (2) of that sec tion.
Therefore, both sections 36(1)(vii) and 36(2) of the 1961 Act, being two of the ingredients of section 10(2)(xi) of the 1922 Act, must be read together with reference to an order under which debts had been written off.
Accordingly, in the light of section 24 of the General Clause Act, 1897, the relevant order made under section 10(2)(xi) of the 1922 Act with reference to which the debt in question had been written off, would be 208 deemed to be an order made under section 36(1)(vii) of the 1961 Act and such order is what is contemplated under sec tion 41(4) of that Act.
Any amount which is recovered on any such debt is attracted by the provisions of section 41(4) of the 1961 Act and is, therefore, chargeable to tax in terms of that sub section to the extent of the 'excess ' specified therein.
[212C G]
|
ivil Appeal No. 3071 of 1988.
? 199 From the Judgment and Order dated 8.4.1988 of the Karna taka High Court in Writ Appeal No. 563 of 1988.
Narayana B. Shetye, D.N. Misra and O.C. Mathur for the Appellant.
S.R. Bhatt for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
The short question which arises in this appeal by special leave is whether the departmental enquiry entrusted to and conducted by a Bank official stands vitiat ed if the said official proceeds with the enquiry and con cludes the same after his superannuation.
during the penden cy of the enquiry? The High Court of Karnataka has held that such an enquiry is incompetent and without jurisdiction and, therefore, null and void.
The facts giving rise to this appeal, briefly stated, are as under: The respondent C. Bernard while serving as a Relieving Head Cashier in the K.G. Road Branch of the Bank in Banga lore city availed of 15 days leave from April 17, 1978 to May 1, 1978 and was allowed an advance of Rs.2,500 on April, 1978 under LFC to be adjusted later on his submitting the LFC Bill.
He submitted a bill for Rs.2,800 on May 5, 1978 along with a stamped cash receipt purported to have been issued by M/s. Shri Manju Travels of Bangalore and claimed reimbursement for the same.
The said bill was passed by the bank on May 15, 1978 but subsequent investigations revealed that the firm of M/s. Shri Manju Travels was a spurious one which indulged in issuing fake travel receipts.
Thereupon the respondent was served with a Memo dated August 1, 1978 by the Divisional office of the Bank calling for his expla nation.
A letter was also addressed on the same day to M/s. Shri Manju Travels, Bangalore requesting them to furnish the details of the persons who traveled and the amounts received by the said firm.
No reply was received from the said firm but the respondent sent a reply on August 10, 1978 which was not found to be satisfactory.
Some correspondence ensued between the respondent and the appellant in this connection but finally the respondent was served with the charge sheet dated October 12, 1978 which was followed by a departmental enquiry.
It is not necessary to go into the details in regard to proceedings at the departmental enquiry but it would be sufficient to state that the respondent participat ed in the departmental enquiry till it was completed by the enquiry officer Shri U.B. Menon.
200 Paragraph 9.14 of the Memorandum of Bi partite Settle ment dated October 19, 1966 empowers the Chief Executive Officer, etc., of he Bank to decide which officer(s) would be empowered to hold enquiry and take disciplinary action in the case of each office or establishment.
Accordingly Shri U.B. Menon, Special Officer, was appointed an Enquiry Offi cer under the Chief Executive Officer 's Order dated January 9, 1979, which reads as under: "Pursuant to the powers vested in the Executive Director by the Chairman and Managing Director of the Bank, as per his office Order dated 20th December, 1978, authorising him to appoint Enquiry Officers and Appellate Authorities under the provisions of Chapter 19 of the Bi partite Settlement dated 19th October, 1966, the undersigned is pleased to appoint Shri U.B. Menon, Special Officer, to work as an Enquiry Officer, to hold and conduct departmental enquiries against the members of the staff governed by the provisions of the Award and Bi partite Settlement, and to pass necessary orders under the provisions of Chapter 19 of the Bi partite Settlement dated 19th October, 1966.
" By a subsequent circular dated January 17, 1979 all offices of the Bank were informed about the appointment.
Shri U.B. Menon was intimated about the same by the Assistant General Manager 's letter dated January 23, 1979.
The said Enquiry Officer conducted the departmental enquiry against the respondent.
However, during the pendency of the departmental enquiry he retired from service on January 31, 1979.
Not withstanding his retirement he continued to function as an Enquiry Officer and concluded the enquiry against the re spondent by the end of 1979.
He then gave an opportunity to the respondent to be heard on the question of punishment and then passed the impugned order of discharge on January 14, 1980.
The respondent 's departmental appeal was also dis missed on June 17, 1980.
The respondent did not raise any objection against the continuance of the enquiry by the said Shri U.B. Menon at any time during the pendency and till the disposal of the departmental appeal preferred by him.
Suf fice it to say that he raised this objection for the first time in Writ Petition No. 18 140 of 1980 filed against the impugned order of discharge in the High Court.
A learned Single judge of the High Court by his order dated January 18, 1988 came to the conclusion that on the retirement of Shri U.B. Menon 'he was nobody in the hierarchy of authorities ' to impose 201 punishment on the respondent and hence the order imposing punishment was clearly incompetent and without jurisdiction.
The argument that since the impugned order of discharge got merged in the appellate order, the initial defect, if any, stood removed, was repelled by the learned Judge on the ground that 'as the original order was without jurisdiction or competence, there was nothing for the Appellate Authority to confirm '.
The learned Single Judge, therefore, allowed the writ petition, quashed the impugned order of punishment and directed that the respondent be paid all consequential benefits.
The appellant preferred a Letters Patent Appeal against the said order of the learned Single Judge.
The Division Bench of the High Court which heard the appeal dismissed it by a one line order: 'no ground for interfer ence is made out '.
It is against this order that the appel lant has approached this Court under article 136 of the Consti tution.
Shri Narain Shetye, the learned counsel for the appel lant strongly urged that the High, Court ought not to have permitted the respondent to question the competence or jurisdiction of Shri U.B. Menon to act as an Enquiry Officer as well as a Disciplinary Authority after his superannuation since he had participated in the enquiry throughout without a demur.
According to him, by conduct the respondent was estopped from raising such a contention for the first time in a writ petition, more so because he had submitted to the jurisdiction of Shri U.B. Menon and there was no prejudice caused on him on that account.
Lastly, he submitted that even otherwise the appellant could have appointed a non official as an Enquiry Officer and therefore his decision could be saved on the de facto doctrine.
Taking the last submission first we think that in the facts and circumstances of this case the de facto doctrine can have no application.
Under paragraph 19.14 of the by parties agreement the Chief Executive Officer was entitled to decide which officer should be empowered to hold an enquiry and take disciplinary action in the case of each office or establishment.
Under this paragraph only an offi cer of the bank could be empowered to hold an enquiry and take disciplinary action against a delinquent.
The names of officers so empowered were required to be published on the bank 's notice board.
Accordingly, Shri U.B. Menon was ap pointed an Enquiry Officer/Disciplinary Authority under paragraph 19.14 of the bi partite agreement while he was still in service.
It is indeed surprising that an officer who was due to retire within a few days only was chosen to act as an Enquiry Officer and Disciplinary Authority by the order dated January 9, 1979.
Shri U.B. Menon was intimated about his appoint 202 ment by the letter of January 23, r979, i.e., hardly a week before his superannuation on January 31, 1979.
After his retirement from service he proceeded with the enquiry and concluded it by the end of 1979.
The respondent was then served with a second show cause notice on the question of punishment and thereafter the impugned order of discharge was passed on January 14, 1980.
There is nothing on the record to show that any formal decision was taken by the appellant to continue the services of Shri U.B. Menon as an official of the bank.
Shri Shetty is right when he contends that an Enquiry Officer need not be an officer of the bank; even a third party can be appointed as Enquiry Officer to enquire into the conduct of an employee.
See: Saran Motors (P) Ltd. vs Vishwanath & Anr., But there can be no doubt that a non official cannot act as a Disci plinary Authority and pass an order of punishment against the delinquent employee.
It is for this reason that the learned Single Judge of the High Court observed that on retirement Shri U.B. Menon was nobody in the hierarchy of authorities to impose punishment on the delinquent.
He therefore, held that the order of punishment was clearly incompetent and without jurisdiction.
The learned counsel for the appellant submitted that since the initial appoint ment of Shri U.B. Menon was valid, his actions and decisions could not be invalidated by his subsequent retirement.
According to him he continued to function as an Enquiry Officer de facto and hence his actions and decisions were saved.
The de facto doctrine has two requisites, namely, (i) the possession of the office and the performance of the duties attached thereto, and (ii) colour of title, that is, apparent right to the office and acquiescence in the posses sion thereof by the public.
According to this doctrine the acts of officers de facto performed within the sphere of their assumed official authority, in the interest of the public or third parties and not for their own interest, are generally held valid and binding as if they were performed by de jure officers.
This doctrine dates back to the case of Abbe de Fontaine decided way back in 1431 to which reference was made by Sir Asutosh Mookerjee, 3.
in Pulin Behari Das vs King Emperor, [1911 12] 16 Calcutta Weekly Notes 1105 at 1120.
Mookerjee, J. held that as the complaint was made after complying with section 196, Criminal Procedure Code, by the order of or under authority from Local Government which was de facto, the proceedings were valid.
On the same principle it was further held that the Court of Sessions, assuming it was not the holder of a de jure office, was actually in possession of it under the colour of title which indicated the acquiescence of the public in its actions and hence its authority could not be collaterally impeached in the proceedings arising from the conviction of Pulin and his co accused.
Again, in Immedisetti Ramkrishnaiah Sons 203 vs State of Andhra Pradesh, AIR 1976 A.P. 193, the Govern ment nominated nine persons on a Market Committee which nomination was later set aside by the High Court.
However, before the High Court pronounced its judgment, the Market Committee had functioned as if it had been properly consti tuted.
Between the date of its constitution and the date of the High Court decision it had taken several decisions, issued notifications, etc., which were the subject matter of challenge on the ground that its constitution was ab initio bad in law.
Chinnappa Reddy, J. relying on the observations of Mookerjee, J., in Pulin 's case concluded that the acts of the Market Committee de facto performed within the scope of its assumed official authority, in the interest of the public or third persons and not for his own benefit are generally as valid and binding as if they were performed by a de jure Committee.
The Allahabad High Court in Jai Kumar vs State, [1968] All.
L.J. 877 upheld the judgments of the District Judges whose appointments were later struck down by this Court on the principle that the acts of officers defac to are not to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or benefit by reason of being the officer which he claims to be.
In all other cases, the acts of an officer de facto are valid and effec tual, while he is suffered to retain the office, as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of the third parties.
This Court in Gokaraju Rangaraju vs State of A.P., ; 1981 SC 1473 was required to consider the question of the effect of the declaration of this Court holding the appointment of an Additional Sessions Judge invalid on judgments pronounced by him prior to such declaration.
This Court observed that the defacto doctrine is rounded on good sense, sound policy and practical experi ence.
It is aimed at the prevention of public and private mischief and the protection of public and private interest.
It avoids endless confusion and needless chaos.
It, there fore, seems clear to us that the de facto doctrine can be invoked in cases where there is an appointment to office which is defective; but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of the office would be as efficacious as those made by a de jure officer.
The same would, however, not be true of a total intruder or usurper of office.
In our view, the submission of Shri Shetty based on the defacto doctrine is clearly misconceived.
Shri U.B. Menon can hardly be described as a person occupying or being in possession of an office to 204 which certain duties affecting the members of the general public can be said to be attached.
The de facto doctrine, as explained earlier, envisages that acts performed de facto by officers within the scope of their assumed official authori ty are to be regarded as binding as if they were performed by officers de jure.
While the de facto doctrine saves official acts done by an officer whose appointment is found to be defective the private parties to a litigation are precluded from challenging the appointment in any collateral proceedings.
But the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office.
Obviously the doctrine can have no application to the case of a person who is not the holder of an office but is merely a bank employee, for that matter an ex employee.
We, there fore, see no merit in this contention '.
True it is that the respondent did not attribute any bias or mala fides to the Enquiry Officer nor did he com plain that he was in any manner prejudiced on account of the said Enquiry Officer conducting he domestic enquiry but that will not cure the defect as to his compensence.
Where pun ishment is imposed by a person who has no authority do so the very foundation on which the edifice is built collapses and with and it fails the entire edifice.
It is a case more or less akin to a case tried by a court lacking in inherent jurisdiction.
We, are, therefore, of he opinion that absence of bias, prejudice or mala fides, is of no consequence so far as the question of competence is con cerned.
The cases which were cited at the bar (i) Delhi Cloth and General Mills Co., Ltd. vs Labour Court, Tis Hazari & Ors., and (ii) Saran Motors, (supra) also have no application to the special facts and circumstances of this case.
Shri Shetye next submitted that if a third party non official can validly be appointed an Enquiry Officer, though not Disciplinary Authority, his report upto the stage pre ceding the issuance of a second ,how cause notice could be saved because both sides to the proceedings had not raised any objection to the continuance of the enquiry by the said Enquiry Officer and therefore the High Court ought to have remitted the matter to the competent Disciplinary Authority to take a fresh decision based on the report of the Enquiry Officer.
To put it differently, according to the learned counsel for the appellant, the High Court should have re manded the matter with a direction that the competent Disci plinary Authority will proceed to dispose of the departmen tal enquiry from the stage of the report submitted by the Enquiry Officer.
We would have considered it necessary to examine this submission had the delinquent not retired in the meantime on August 21, 1986.
The High Court pronounced its Judgment thereafter 205 on January 18, 1988.
No useful purpose, therefore, can be served by adopting the procedure suggested by Shri Shetye as the respondent had admittedly retired from service in 1986 and if the order imposing punishment is quashed he would ordinarily have to be paid his wages etc., upto the date of his retirement.
We, therefore, do not think that, in the facts and circumstances of this case, the course suggested by Shri Shetye can be usefully adopted.
Lastly, Shri Shetye submitted that in any event the respondent succeeded in getting the order of punishment quashed on a mere technicality and that too on the conten tion belatedly raised before the High Court for the first time and, therefore, the High Court was in error in direct ing payment of all consequential benefits.
We think there is merit in this contention.
If the objection was raised at the earliest possible opportunity before the Enquiry Officer the appellant could have taken steps to remedy the situation by appointing a competent officer to enquire into the charges before the respondent 's retirement from service.
It is equally true that the penalty has not been quashed on mer its.
On the contrary, if one were to go by the charge le velled against the respondent and the reply thereto one may carry the impression that the respondent had made the claim on the basis of the fake receipt; whether the respondent himself was duped or not would be a different matter.
The fact, however, remains that the impugned order of punishment has to be quashed not because the merits of the case so demand but because the technical plea of incompetence suc ceeds.
In the circumstances, we think that the ends of justice would be met if instead of directing 'all consequen tial benefits ' the appellant is ordered to pay '50% of the consequential benefits ' to which the respondent would be entitled on superannuation.
For the above reasons, we are of the opinion that the High Court was right in quashing the impugned order of punishment but we think having regard to the special facts and circumstances pointed out earlier, it should not have ordered payment of 'all consequential bene fits ' flowing from the declaration that the impugned order was bad in law.
We, therefore, modify this part of the order by substituting the words fifty percent ' in place of the word 'all ' in the penultimate paragraph of the learned Single Judge 's order.
To put the matter beyond the pale of doubt we clarify that the respondent will be paid 50% of the consequential benefits and not all the consequential bene fits.
Except for this modification, the rest of the order of the High Court will stand.
The appeal will stand allowed to the above extent but, in the facts and circumstances of this case, we think the parties should be directed to bear their own costs.
T.N.A. Appeal allowed partly.
|
The respondent, a bank employee, was chargesheeted for claiming L.F.C. on the basis of fake travel receipts.
The Bank appointed one of its officers as Enquiry Officer as well as Disciplinary Authority who conducted the departmen tal enquiry against the respondent.
However, during the pendency of the enquiry the Enquiry Officer retired from service.
Notwithstanding his retirement from service he proceeded with the enquiry and concluded the same against the respondent.
The respondent participated in the enquiry without raising any objection against the continuance of the said Enquiry by the said Enquiry Officer.
After giving an opportunity to the respondent to be heard on the question of punishment the Enquiry Officer/Disciplinary Authority im posed the punishment of discharge.
The respondent fried a departmental appeal which was dismissed.
Thereafter, the respondent filed a writ petition in the High Court challeng ing the order of discharge on the ground that the order passed by the Enquiry Officer was without jurisdiction.
A single judge of the High Court allowed the Writ Peti tion, quashed the order of punishment with all consequential benefits to the respondent on the ground that after retire ment the Enquiry Officer was nobody in the hierarchy of authorities to impose punishment on the delinquent employee and hence his order imposing punishment was incompetent and without jurisdiction.
Against the order of the single judge the Bank preferred a Letter Patent Appeal before a Division Bench of the High Court which was dismissed.
197 In appeal to this Court it was contended on behalf of the appellant Bank; (i) that the decision of the Enquiry Officer could be saved on the basis of de facto doctrine because (a) his initial appointment being valid his actions and decisions could not be invalidated by his subsequent retirement since he continued to function as a de facto Enquiry Officer; (b) even otherwise the Bank could have appointed a non official as Enquiry Officer; (ii) that since the High Court quashed the punishment not on merits but on a mere technicality, it erred in directing payment of all consequential benefits to the respondent; and (iii) since the respondent submitted to the jurisdiction of the Enquiry Officer and there was no prejudice caused to him he was estopped from raising the contention as to the competence or jurisdiction of the Enquiry Officer for the first time in the Writ Petition.
Allowing the appeal in part, this Court, HELD: 1.
The de facto doctrine has to requisites, name ly, (i) the possession of the office and the performance of the duties attached thereto, and (ii) colour of title, that is, apparent right to the office and acquiescence in the possession thereof by the public.
According to this doctrine the acts of officers de facto performed within the sphere of their assumed official authority, in the interest of the public or third parties and not for their own interest, are generally held valid and binding as if they were performed by de jure officers.
This doctrine can be invoked in cases where there is an appointment to office which is defective; but notwithstanding the defect to the title of the office, the decisions made by such a de facto officer clothed with the powers and functions of the office would be as effica cious as those made by a de jure officer.
The same would, however, not be true of a total intruder or usurper of office.
The doctrine envisages that acts performed de facto by officers within the scope of their assumed official authority are to be regarded.
as binding as if they were performed by officers de jure.
While the de facto doctrine saves official acts done by an officer whose appointment is found to be defective the private parties to a litigation are precluded from challenging the appointment in any col lateral proceedings.
But the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office.
Obviously the doctrine can have no application to the case of a person who is not the holder of an office but is merely a bank employee, for that matter an ex employee.
[202E F; 203BF G; 204A C] 1.1 In the instant case, the Enquiry Officer can hardly be described as a person occupying or being in possession of an office to which certain duties affecting the members of the general public can be 198 said to be attached.
Therefore in the facts and circum stances of this case the de facto doctrine can have no application.
[203H; 204A; 201G] Pulin Behari Das vs King Emperor, [1911 12] 16 Cal.
Weekly Notes 1105; Immedisetti Ramkrishnaiah Sons vs State of Andhra Pradesh, A.I.R. 1976 A.P. 193; Jai Kumar vs State, [1968] All.
L.J. 877; Gokaraju Rangaraju vs State of A.P., ; ; referred to.
Abbe de Fountaine decided in 143 1; cited.
1.2 An Enquiry Officer need not be an officer of the bank: even a third party can be appointed an Enquiry Officer to enquire into the conduct of an employee.
But there can be no doubt that a non official cannot act as a Disciplinary Authority and pass an order of punishment against the delin quent employee.
Therefore, where punishment is imposed by a person who has no authority to do so the very foundation on which the edifice is built collapses and with and it fails the entire edifice.
It is a case more or less akin to a case tried by court lacking in inherent jurisdiction.
Absence of bias, prejudice or mala fides, is of no consequence so far as the question of competence of the Enquiry Officer is concerned.
[202B; 204D E] Saran Motors (P.) Ltd. vs Vishwanath & Anr., ; referred to.
Delhi Cloth and General Mills Co. Ltd. vs Labour Court, Tis Hazari & Ors., ; Held inapplicable.
In the instant case, the impugned order of punishment was quashed not because the merits of the case so demanded but because the technical plea of incompetence succeeded.
Therefore, the High Court was right in quashing the impugned order of punishment but having regard to the special facts and circumstances of the case, it should not have ordered payment of 'all consequential benefits ' flowing from the declaration that the impugned order was bad in law.
The order of the High Court is modified to the extent that the respondent will be paid 50% of the consequential benefits and not all the consequential benefits.
Except for this modification, the rest of the order of the High Court will stand.
[205E G]
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establishment of the Judge of Small Causes Court, Delhi, the name of Respondent No. 1 appears at Serial No. 9 whereas that of the appellant appears at Serial No. 19.
Both of hem satisfy the test of integrity.
The only claim the appellant can have 135 is on the principle of rotation as he is a graduate.
As that principle does apply to an appointment by promotion to the post in question, the claim of the appellant cannot be upheld.
[140F G] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 592 of 1982.
From the Judgment and Order dated 7.8.198 1 of the Delhi High Court in Civil Writ Petition No. 1003 of 1974.
Prithvi Raj and T.C. Sharma for the Appellant.
Dr. Arun Kumar and V.B. Saharya for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
On the retirement of one Jagan Nath Kohli, who was holding the post of Clerk of Court (Upper Division Clerk) in the grade of Rs. 130 300 (old Scale Rs.75 5 125), one post of Upper Division Clerk (U.D.C.)/English Clerk fell vacant in the office of the Judge, Small Causes Court, Delhi.
Five officials of that court, namely, the appellant and respondents nos.
1, 5, 6 & 7 asserted their claim to the said post.
The appellant, Chander Bhan, made his claim on the footing that he was a graduate and on the basis of the rule of rotation as embodied in Rule VI in Chapter XVIII A of the High Court Rules and Orders, Volume I referred to more particularly hereinafter.
Respondent No. 1, Hotilal Gupta, claimed the said post on the basis of his seniority.
We are not concerned with the claims of the other claimants because the contest before us is between the claims of the appellant and respondent No. 1.
The Judge, Small Causes Court in his order dated August 10, 1971, took the view that the appellant who is a graduate and has got 2 1/2 years office experience as Lower Division Clerk (L.D.C.), was an honest and efficient worker and was entitled to promotion in preference to respondent No. 1 because of the rule of rota tion.
The aggrieved parties filed an Administrative Appeal before the District & Sessions Judge, Delhi who passed his order dated July 17, 1973 and held that the rule of rotation did not apply to the establishment of the Judge, Small Causes Court.
He held that respondent No. 1 being the senior most official as Lower Division Clerk was entitled to the post of Upper Division Clerk and accordingly appointed respondent No. 1 as Upper Division Clerk against the said vacancy.
Being aggrieved, the appellant filed a departmental appeal against the said order to the High Court of Delhi which was heard by a learned 136 Judge on the Administrative Side of that Court who, by his order dated August 7. 1974.
accepted the appeal of the appellant and set aside the appointment of respondent No. 1.
He took the view that promotion in the office of the Judge, Small Causes Court, Delhi could only be made by the District and Sessions Judge, Delhi and that the vacancy should be filled in accordance with rule VI of the Rules framed by the erstwhile Punjab High Court, under section 35(3) of the punjab Courts Act, 1918, for subordinate services attached to Civil Courts other than the High Court (hereinafter referred to as 'the said rules ').
Respondent No. 1, Hotilal Gupta challenged the correct ness of the view taken by the learned Judge on the Adminis trative side by filing a writ petition being C.W. No. 1003 of 1974 in the Delhi High Court.
By an order dated 7th August, 198 1, the Division Bench of the Delhi High Court allowed the said writ petition, quashed the order dated 7th August, 1974, passed by the learned Single Judge and upheld the order of the District and Sessions Judge, Delhi appoint ing respondent No. 1 to the said post.
The Division Bench took the view that not only the initial appointments but also the appointments by promotion to the post of Upper Division Clerk in the office of the Judge, Small Causes Court were to be made by the Judge, Small Causes Court and not by the District and Sessions Judge, and held that the rule of rotation on the basis of which the appellant had been appointed to the said post by the order of the Single Judge on the Administrative Side was not applicable to the said appointment.
It is submitted by learned counsel for the appellant that the Division Bench of the High Court was in error in coming to the said conclusion.
It was submitted by him that although the first appointment to the post of Upper Division Clerk in the office of the Judge, Small Causes Court, Delhi is to be made by a Judge of Small Causes Court, promotion to that post could only be made by the District & Sessions Judge and the rule of rotation contained in the first proviso to Rule VI of the said Rules was applicable to the appointment by promotion.
order to consider the merit of the submission of learned counsel for the appellant, it is necessary to bear in mind the relevant provisions of law.
The relevant portion of section 35 of the Punjab Courts Act.
191S reads as follows: "(1) The ministerial officers of the District Courts and 137 Courts of Small Causes shall be appointed and may be sus pended or removed by the Judges of those Courts respective ly.
(2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) Every appointment under this section shall be subject to such rules as the High Court may prescribed in this behalf, and in dealing with any matter under this section, a Judge of a Court of Small Causes shall act subject to the control of the District Court.
" The rules for subordinate services attached to Civil Courts other than the High Court were framed by the erst while Punjab High Court under section 35(4) of the Punjab Courts Act.
A perusal of Rule II of the said Rules dealing with classification, shows inter alia that Clerks of Court to Senior Subordinate Judges and Judges of Courts of Small Causes and English and Vernacular Clerks form a joint cadre.
Subrule (b) of Rule II of the said Rules inter alia provides that there shall be a separate cadre for each Revenue Dis trict and a separate cadre for each Court of Small Causes.
Rule III deals with qualifications and sub rule (2) of that Rule provides that no person shall be appointed to, or accepted as a candidate for, any clerical ministerial post, unless he has passed the Matriculation Examination of the Punjab University or an equivalent examination.
The material part of Rule 'IV runs as follows: "IV.
First appointments.
First appointment shall be made as follows: (1) By the District Judge: (a) Ministerial officers in his own court and in all courts controlled by the District Court other than Courts of Small Causes; .
(b) x x x (2) x x x (3) By the Judge of a Court of Small Causes: Ministerial Officers and menials in his own Court." . 138 Rule V deals with appointment and sub rule (1) of that Rule thereof runs as follows: "(1) Appointment to ministerial posts shall ordi narily be made either by open competition or by selection from a list of qualified candidates or apprentices accept ed by the District Judge.
Judge of a Small Causes Court,.
or Sub Judge to whom powers of appointment have been delegat ed, as the case may be.
Any departure from either of these methods should be reported to the High Court for confirma tion." Rule VI. which is of central importance in this appeal runs as follows: "VI.
Promotion (1) Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades, provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted, for which purpose tests may be imposed.
This rule does not apply to such posts as that of stenographer, for which special qualifications are needed; but preference should be given to officers with such qualifications who are already working in the lower grades: Provided that permanent vacancies in the 75 5 125 grade shall be filled by the District and Sessions Judges in the following rotation: (i) By selection on merit out of graduates who have at least two years ' experience in the work of the office, if there is no suitable graduate who fulfils this condition an 'outsider ' graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District and Sessions Judge.
(ii) & (iii) By normal promotion in the office, i.e. the appointment of the next senior man whether graduate or non graduate subject to his fitness: Provided further that the rotation may be modified in 139 very exceptional cases when the direct appointment of a graduate would mean the ousting of a man who had been officiating quasi permanently in the post concerned for an appreciable period.
What is an appreciable period will depend on the circumstances of each case.
After such a modification.
the rotation should be restored as soon as possible.
(2) In making promotions preference may invariably be shown to officials who are known to be strictly honest.
No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity.
Effi ciency without honesty is not to be regarded as constitut ing a claim to promotion. ' A Notification dated October 28, 1953 was issued in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of the Notifica tion issued earlier on February 17, 1941.
The said Notifica tion sets out that subject to such general rules as may be made by the Hon 'ble Judges of the Punjab High Court in that behalf appointments to the posts on the establishment of the Civil Courts at Delhi specified in Column (1) of the Sched ule thereto shall be made by the Authority specified in the corresponding entry in Column (2) of the said Schedule.
A perusal of the Schedule shows that appointments to the posts on establishments other than process serving and menial establishments in the Small Causes Court at Delhi are ' to be made by the Judge, Small Causes Court, Delhi.
It has been pointed out in the impugned judgment that the establishment of the District and Sessions Court and that of the Court of the Small Causes constitute separate cadres.
This is not disputed before us.
Hence, whenever a specific mention is made regarding a particular officer of an estab lishment in a rule, that particular rule would normally apply to that establishment alone and the powers conferred by that rule would be conferred on the officer mentioned in the rule.
Rule VI(1) speaks of appointments to the higher grades of the ministerial establishments and states that these appointments should ordinarily be made by seniority from lower grades provided that the official to be promoted possess the qualifications prescribed.
The first proviso to that rule goes on to say that the permanent vacancies in the original grade of Rs.75 5 125 shall be filled in by the District and Sessions Court by rotation as set out in the said sub rule (1) of Rule VI.
The first part of Rule VI deals with appointments by promotion to the higher grade of ministerial establishment.
Generally it must be 140 held applicable to the establishment of the District and Sessions Court as well as that of the Judge of the Small Causes Court.
This rule, however, does not deal specifically with the question as to who is the officer competent to promote.
In view of this, the proviso can only be construed as laying down that, where the power of appointment by promotion is vested in the District and Sessions Judge, in making appointments by promotion to fill in.the permanent vacancies in the said original grade of Rs.75 5 124, rule of rotation set out in the first proviso to clause (1) of Rule VI should ordinarily be followed.
It is not disputed that there is a separate Cadre for the Court of Small Causes.
Rule IV(3) shows that the first appointment of the ministe rial officers in the Court of Small Cause is to be made by the Judge of the Small Causes Court.
The notification dated October 28, 1953 referred to earlier provides that the appointments to the posts on establishment other than proc ess serving and menial in the Court of Small Causes are to be made by the Judge, SmaLl Causes Court, Delhi.
A reading of sub section (1) of the Punjab Courts Act and the rules and Notification discussed earlier makes it clear that appointments by promotion to the posts in the entire ministerial cadre other than in the process serving and menial establishments in the Court of Small Causes have to be made by the Judge, Court of Small Causes and the first proviso to Rule VI(1) prescribing the rule of rotation has no application to such appointments.
Moreover, it would be unreasonable to apply the principle of rotation to the Court of Small Causes where there is only one U.D.C.
The principle of rotation can be made applicable to the District & Ses sions Court because there are a number of posts of Upper Division Clerks.
It would be irrational to apply that prin ciple of rotation to the Court of Small Causes in which there is only one Upper Division Clerk/English Clerk.
In the seniority list of the establishment of the Judge of Small Causes Court, Delhi, the name of respondent No. 1 appears at Serial No. 9 whereas that of the appellant ap pears at Serial No. 19.
Both of them satisfy the test of integrity.
The only claim the appellant can have is on the principle of rotation as he is a graduate.
As that principle does not apply to an appointment by promotion to the post in question, the claim of the appellant cannot be upheld.
As we have already observed, none of the other respondents have pressed their claims in the High Court or here.
In the result, the appeal fails and is dismissed.
Looking to the facts and circumstances of the case there will be no order as to costs.
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One post of Upper Division Clerk/English Clerk fell vacant in the Small Causes Court.
Appellant made his claim to the post on the footing that he was a graduate and on the basis of Rule of Rotation embodied in Rule VI of the High Court Rules and Orders, Volume 1, Respondent No. 1 made his claim on the basis of seniority.
The Judge, Small Causes Court took the view that the appellant was entitled to promotion in preference to Respondent No. 1 because of the rule of rotation.
On an Administrative Appeal, the District applicable to the establishment of Judge, Small Causes Court, and appointed Respondent No. 1 as Upper Division Clerk.
The Appellant preferred a departmental appeal which was heard by a Single Judge on the Administrative side of the High Court.
He took the view that the promotion in question could be made by the District & Sessions Judge, and should be in accordance with the rule of rotation.
Respondent No. 1 challenged the said decision by way of a Writ Petition.
The High Court allowed the Writ Petition and held that not only initial appointments but also ap pointments by promotion were to be made by the Judge, Small Causes Court and not by the District & Sessions Judge, and that the rule of rotation was not applicable.
Against the High Court 's decision, the appellant has preferred this appeal contending that the promotion in question could only be made by the District & Sessions Judge and that the rule of rotation was applicable even to the appointment by promotion.
Dismissing the appeal, this Court, HELD: 1.
Whenever a specific mention is made regarding a 134 particular officer of an establishment in a rule, that particular rule would normally apply to that establishment alone and the powers conferred by that rule would be con ferred on the officer mentioned in the rule.
Rule VI(1) of the High Court Rules speaks of appointments to the higher grades of the ministerial establishments and states that these appointments should ordinarily be made by seniority from lower grades provided that the officer to be promoted possesses the qualifications prescribed.
The first proviso to that rule goes on to say that the permanent vacancies in the original grade of Rs.75 5 125 shall be filled in by the District & Sessions Court by rotation as set out in the said sub rule (1) of Rule VI.
The 1st part of Rule VI deals with appointments by promotion to the higher grade of ministerial establishment.
Generally it must be held applicable to the establishment of the District & Sessions Court as well as that of the Judge, Small Causes Court.
This part, however, does not deal specifically with the question as to who is the officer competent to promote.
In view of this, the proviso can only be construed as laying down that, where the power of appointment by promotion is vested in the District & Sessions Judge, in making appointments by promotion to fill in the permanent vacancies in the said original grade of Rs.75 5 125, rule of rotation set out in the first provi so to clause (I) of Rule VI should ordinarily be followed.
It is not disputed that there is a separate Cadre for the Court of Small Causes.
Rule IV(3) shows that the first appointment of the ministerial officers in the Court of Small Causes is to be made by the Judge of the Small Causes Court.
[139F H; 140A C] 2.
A reading of sub section (1) of the Punjab Courts Act, 1918 the High Court Rules, and Notification issued makes it clear that appointments by promotion to the posts in the entire ministerial cadre other than those in the process serving and mental establishments in the Court of Small Causes have to be made by the Judge, Court of Small Causes and the first proviso to Rule VI(1) prescribing the rule of rotation has no application to such appointments.
Moreover, it would be unreasonable to apply the principle of rotation to the Court of Small Causes where there is only one U.D.C.
The principle of rotation can be made applicable to the District & Sessions Court because there are a number of posts of Upper Division Clerks.
It would be irrational to apply that principle of rotation to the Court of Small Causes in which there is only one Upper Division Clerk/English Clerk.
[140D E]
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Civil Appeal No. 390 of 1979.
From the Order dated 14.2.1978 of the Central Govt.
at New Delhi in Revision Petition No. MB/133/77.
Anil B. Dewan, S.K. Dholakia, P.C. Kapur and P. Nara simhan for the Appellants.
Kapil Sibbal, Additional Solicitor General (NP), Ms. Nisha Bagchi.
Ms. Sushma Suri and C.V.S. Rao for the Re spondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
All these appeals involve a common ques tion as to whether the goods exported by the appellants are liable to export duty.
There are 67 appeals which relate to various batches of exports made by the appellants during the period from 4.3.76 to 14.2.82.
They will be disposed of by this Common order.
The goods exported by the appellants are blanched, roasted and salted peanuts packed in vacuum containers.
The appellants purchase groundnuts without shell in raw form various parts of Saurashtra in the State of Gujarat.
There after, they are sorted out into different sizes small, medium and big.
The medium and small sizes are separated.
Dust and husk are cleaned out and other foreign material removed.
The commodity then goes to a dry roaster where it is roasted at a 144 temperature of 150 deg.
This results in reduction of the moisture and destruction of enzymes to a considerable ex tent.
It is also stated that by this process any fungus or aflotoxin is removed.
After dry roasting, the product is cooled down with the aid of a blower so that the skin of the groundnuts become loose and the groundnut contracts.
There after, it goes through automatic blanching machines.
This separates the skin of the groundnut and on removal of the skin it becomes white.
Thereafter, the seeds are put on running tables and picked, according to uniform sizes, with the aid of an electric eye sorter.
The commodity thereafter goes to a frying section for being subjected to deep oil bath frying in an automatic fryer.
They are then subjected to anti oxident chemicals and thereafter sent through the blower for being cooled down.
The extra oil is sucked out.
They are then subjected to a glazing process and are given permeated chemicals and salt treatment and are packed in packets and tins.
The goods thus exported by the appellants are charged to duty under item 13 of the Second Schedule to the Indian Tariff Act 1934 and.
later, under item 20 of the Second Schedule to the .
The entry is the same under both enactments but the rate of duty is differ ent.
The entry reads: Item N0.
The first line of argument of the assessee was that the item 'groundnut kernel ' refers to groundnut seeds, the basic characteristic of which is the quality of germination.
It was submitted that, since the product exported by the assessee, though basically ground nuts, had been so processed and treated that it lost its quality of germination, it could no longer be described as 'groundnut kernel '.
The second line of argument put forward on behalf of the appellant was that the entry in the export tariff referred only to groundnut kernel used for oil ex traction.
It was pointed out that groundnut in shell as well as groundnut kernel can be said to be of two varieties one an edible variety and the other a variety used for oil extraction purposes.
While it is true that it is not a mutually exclusive classification in that perhaps all groundnut is capable of being eaten or of being 145 processed to yield oil, the submission was that these two varieties of groundnut kernels or groundnut in shell were two different trade commodities.
They had different charac teristics; they were meant for different markets.
; their end use was different; and their prices as well as mode of pricing were totally different.
Referring to entries in this regard in the BTN (British Trade Nomenclature), the Indian Import Tariff as well as the Indian Import Export Policy, it was contended on behalf of the appellant that the entry should be confined only to groudnut kernel of the oil yield ing variety and not the variety exported by the appellant, which could be more appropriately described as "processed food" rather than as groundnut kernel.
The appellant 's contention, initially put forward before the Assistant Collector of Customs in an application for refund, was rejected by the Collector of Customs, on appeal by the Central Board of Excise and Customs and, on further revision, by the Government of India under the then existing procedure.
So far as the subsequent periods of exports were concerned, the contentions of the appellant were considered and rejected by a Full Bench of the Customs, Excise Gold Control Appellate Tribunal.
The appellant preferred a Spe cial Leave Petition from the order of the Central Government in revision dated 14.2.1978, which was admitted and num bered as Civil Appeal No. 146 of 1979.
Against the other orders of the Tribunal, the appellant has preferred appeals to this Court under section 130 E of the .
On behalf of the appellants, a number of circumstances have been relied upon to justify the distinction sought to be made between groundnut kernel simpliciter and blanched and roasted groundnuts exported by the assessee.
It will be convenient to summarise the points made on behalf of the appellant here: (1) In the Indian Trade Classification (I.T.C.), which has been published by the Government of India for purposes of foreign trade, there is a bifurcation in the classification between the oil seeds and roasted nuts.
There are various revisions of this classification.
Upto 1st April, 1972, the I.T.C. classified oil seeds, oilnuts and oil kernels in Division 22.
The various items occurring under this Division were as follows: Code No. Description Unit of Quantity Group 221 Oil seeds, oilnuts and oil kernels 146 221.1 Groundnuts (Peanuts), green.
whether or not shelled (excluding flour and meal) 221.1001 Groundnut kernels.
H.P.S. 221.1002 Groundnut kernels
N.E.S. 221.1003 Groundnut in shell.
H.P.S. TONNE 221.1004 Groundnut in shell.
N.E.S.
As against the above in group No. 053 roasted nuts are specified as below: 053.9009 Others (roasted nuts including groundnuts) In a revised alphabetic index to the commodities, the relevant code numbers for various commodities pertaining to groundnuts are as follows: Commodity Code No. Groundnut in Shell HPS 221.1003 Groundnut in Shell NES 222.1004 Groundnut kernels HPS 222.1001 Groundnut kernels NES 222.1002 Groundnut oil, crude 423.4001 Groundnut oil purified 423.4002 Groundnut oil, deodorized 423.4003 Groundnut oil, hydrogenated 431.2001 Groundnut oil cake and meal 1081.3201 Groundnut roasted 058.9107 In the more recent classification heading No. 12.02 refers to groundnuts, not roasted or otherwise cooked, whether or not shelled 147 or broken.
The unit of quantity in which these goods are sold is tonne.
This chapter deals with various types of oil seeds like soya beans copra, linseed, rape or colza seeds, sunflower seeds, palm nuts and kernels and other oil seeds and oleaginous fruits.
On the other hand edible nuts come under heading 20.08, which reads thus: "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere speci fied or included Nuts, ground nuts and other seeds, whether or not mixed together: Ground nuts Kg.
Other, including mixtures Cashew nut, roasted Kg.
Nuts, prepared or preserved Kg.
Other roasted nuts and seeds n .e.s.
" (2) A similar classification has also been made under the BTN.
Note i under this Chapter reads thus: 1.
It is to be taken not to apply to coconuts or other products of heading No. 08.01 or to olives (Chapter 7 or Chapter 20).
It does not, however, include olives (Chapter 7), coconuts (heading 08.01) or certain seeds and fruits from which oil may be extracted but which are primarily used for other purposes, e.g. walnuts and almonds (heading 08.05), apricot, peach and plum kernels (heading 12.08) and cocoa beans (heading 18.01)".
148 It is also stated that the heading covers, inter alia, ground nuts (except roasted ground nuts heading 20.06).
As against this heading 20.06, which deals with fruit otherwise prepared or preserved, whether or not containing added sugar or spirit, carries the following sub heading: (3) Almonds, ground nuts, areca (or betel) nuts and other nuts, dry roasted, oil roasted or fat roasted, whether or not containing or coated with vegetable oil, salt, flavours, spices or other additives.
(3) Even under the Customs Tariff, the first Schedule, which deals with import, contains a similar classification.
Chapter 12 and note 1 to the Chapter are the same as in BTN.
Item 12.01 reads oil seeds and oleaginous fruit, whole or broken (1)not elsewhere specified (2) Copra.
Chapter 20 deals with preparations of vegetables, fruit or other parts of plants.
It contains a note that the Chapter covers edible plants.
parts of plants and roots of plants conserved in syrup (for example, ginger) and roasted groundnuts.
This indi cates that the customers for two types of goods are totally different.
(5) 0n 14th July, 1976, the Government of India decided to ban with immediate effect export of HPS (Hand Picked Seeds) groundnuts (both in shell and kernel), which is canalised through Indian Oil and Oil Produce Exporters ' Association.
However, by an export trade notice dated 8.9.76, the Government of India clarified that the item "blanched and roasted groundnut kernels", does not fall within the purview of Exports Control Order, 1968 and its export is allowed without any licensing formalities.
(6) It has been pointed out that the Collector of Cus toms used to levy and recover an agricultural cess on the goods in question until the Government of India, by an order of 1976, held that the roasted and salted peanuts/groundnuts exported by the assessee were not liable to cess under the .
(7) It is pointed out that the packed roasted seeds exported by the appellants are more value added than raw groundnut kernel used 149 for other purposes.
The assessee 's product is packed in vacuum containers and sold in terms of kilograms, whereas other groundnuts are exported in bags or drums and sold in tomes.
It would not be correct to bring both of them under same classification for export purposes.
Relying on the above points of difference, Shri Divan and Dholakia, appearing on behalf of the appellant vehement ly contend that the entry in the export tariff should be given a restrictive interpretation.
Reliance is placed in this context on a judgment of the Madras High Court in Kalaivani Fabrics vs Collector, a direct decision on the present issue.
Reference is made also to the cases cited therein and, in particular, to the ruling of this Court in M/s. Healthways Dairy Products Co. vs Union of India & Ors., ; Shri Divan submits that if there is any ambiguity or doubt it should be re solved in favour of the assessee.
He contends that, while the taxing authorities, on whom the onus lies, have merely rested on the dictionary meaning of the .word 'groundnut kernel ', the assessee has placed a lot of material show that there are two different commercial varieties of groundnut kernel.
He submits that, in matters of export and import, the functional test is slowly replacing other tests, an approach clearly indicated by the classifications under the BTN, ITC and the import tariffs.
Shri Dholakia, appearing on behalf of the appellant in one of the appeals, very strongly urges that the commodity known as groundnut kernel consists of two entirely different varieties or classes particularly in matters of trade.
There is a sea of difference between the groundnut kernel which is exported as an oil producing variety and the roasted peanuts which are exported more or less as a 'processed food ' by the appellant.
The produce exported by the appellants has no oil content; it is incapa ble of being used for germinating purposes; its market, its unit of quantity of sale, itS price and even its exporters are totally different viewed from the commercial point of view, it is impossible to mix up these two varieties under one common heading and this could not have been the inten tion of the export tariff.
He, therefore, submits that the export tariff item should be restricted only to one of these varieties, namely, the oil seed variety or the germinating variety and should not be extended to the roasted items sold by the assessee.
Shri Dholakia also raised a point that the appellant 's factory was located in a free trade zone trod that, having regard to the various notifications of the Government of India, the Government was estopped from levying any export duty on its products.
The necessary facts to 150 found any such promissory estoppel have not been put forward or considered by any of the assessing or appellate authori ties.
We, therefore, decline to permit Shri Dholakia to raise this question at this belated stage.
On the other hand Ms. Nisha Bagchi, who argued the case on behalf of the Union of India very ably, submitted that the expressions 'groundnut kernel ' and 'groundnut shell ' used in the export entry were of the widest connotation.
She referred to the dictionary meanings of the word 'kernel ' and submitted that there is no justification whatsoever for restricting its meaning on the basis of the capacity to germinate or to yield oil.
In fact, she contended, the very fact that the export tariff avoids all these classifications and uses a wide expression, which is capable of taking in both the edible as well as the oil seed varieties of the groundnuts, supports her conten tion that, so far as export tariff is concerned, the legis lature intended no limitations whatsoever.
In support of her contention as to the wide meaning of the expression 'ground nut kernel ', she relied on certain observations of this Court in State vs Shanmagha Vils Cashewnut Factory, [1953] 4 S.T.C. 205 and of the Madras High Court in Binod Cashew Corporation vs Deputy Commercial Tax Officer, [1986] 61 S.T.C. 1.
She submitted that the interpretation sought to be placed on the entries in the export tariff by the appellant will carve away a substantial category of the goods de scribed in the wide tariff entry from its scope.
So far as agricultural cess is concerned, she pointed out, .rightly, that it was leviable only in respect of "seeds", an expres sion that imports a concept of a capacity to germinate, particularly, in an agricultural context.
Obviously, the groundnut kernel, roasted and salted, could not be described as 'seeds ' and therefore, the Government of India had rightly exempted them from agricultural cess.
According to counsel, the functional test may be attracted where there is a bifurcation or classification as in the tariff entries referred to on behalf of the appel lant but there is no justification to import any such test where the expression, as in this instance, is broad and unrestricted.
Referring to the exemption from export ban, learned counsel submitted that the very fact that it was considered necessary to exempt the blanched and roasted peanuts from the export ban indicates that otherwise they would have been included in the export ban.
Learned counsel took us through the 151 orders of the appellate authorities and the tribunal and submitted that they have taken a correct view in the matter which does not call for any interference.
She submitted that groundnut kernel remains groundnut kerneI even after roasting and frying.
The process, though described elaborately on behalf of the appellant, does not create a different product.
This, she pointed out, was the finding of the appellate authorities.
There is no justification, therefore counsel contended to read any limitation into the export entry.
Having considered the submissions of both parties, we are of opinion that the contention of the Revenue should prevail.
To our mind, there is no difficulty or ambiguity in the interpretation of the tariff entry.
Groundnut is a well known commodity which is available both in shell and as kernel.
In this context, 'kernel ' clearly means the grain, seed or the soft matter inside the shell, whatever the use or purpose to which it is put, eating or crushing for oil or sowing.
On behalf of the appellant, it is emphasised that the goods exported by the assessee and groundnut oil seeds are totally different commercial commod ities.
Even the acceptance of this argument does not carry the appellant 's case to the desired
Assuming that two different commercial commodities fail under the same entry, there is no reason why the entry should be restricted to only one of them.
It can and should cover both unless one can say that the commodity marketed by the appellant is not 'groundnut kernel '.
We are not convinced that the goods exported by the assessee have ceased to be groundnuts in the ordinary accep tation of the term or that they have become a different commodity, say, a processed food (indeed, there is no such classification in the tariff entry).
The decision in Diwan Chand (Chaman Lal, [1977] 39 STC 75 turned on the descrip tion of groundnuts in Schedule C of the Punjab Sales Tax Act as a species of oil seeds and it was held that parched groundnuts constituted a different commodity.
But the fact is that, though the raw groundnut kernel has undergone a drying.
roasting and frying process, its identity as ground nut is not lost.
Even in the market to which it is exported and where it is marketed, it is purchased only as groundnuts (or peanuts, as they are called in the U.S.A.).
May be there are two 152 different commodities but both are known only as 'ground nuts '.
The argument that the scope of the entry should be restricted because of the two fold classification existing elsewhere between groundnuts as "oil seeds" and groundnuts as "fruits, nuts and edible substances" does not appeal to us.
In the first place, it does not meet the argument that basically both items are only varieties of groundnuts and hence not taken out of the relevant entry.
Secondly, there is force in the argument of State counsel that the legisla ture has, deliberately, not adopted, for the purposes of the Second Schedule, the minute multiclassification of the First Schedule and allied classifications.
Unlike the Import Tariff, the BTN and the ITC, there is no sub classification ' attempted in the export entry.
The legislature must be presumed to know that, for import purposes, for instance, groundnuts are classified under different headings with differential rates of duty.
Those entries appear not else where but in the First Schedule of the very enactment which sets out the export tariff.
The First Schedule to the Indian Tariff Act refers to seeds, oil seeds and oil in section II and talk only of canned fruits and vegetables in section IV (dealing with products of food preparing industries).
The entries in the Customs Tariff relating to imports have already been touched upon.
If, in spite of such detailed classification elsewhere, the legislature decided to use a wider expression in the Second Schedule, the intention of the legislature must be given effect to.
Shri Dholakia submitted that while the need to restrict imports necessitated a detailed enumeration and precise classification, the export duty is levied only on a short list of items.
This may be so but this point of distinction is not enough to explain why, when an entry finds a place in the export tariff, it should not receive its normal interpretation but should receive one circumscribed by the entries in the import tariff or other classifications.
A point was also made by Sri Dholakia that, since the export duty is on the basis of tonnes and it is only the groundnut oil seed that is exported in units of tonnes, the entry should be confined to this commodity alone.
This, we are afraid, is a very precarious basis for the interpretation of the body of the entry.
In this context, we should also point out that no difficulty, anomaly or absurdity arising out of the computation of export duty in terms of tonnes on these goods was brought to the notice of the authorities at any stage.
It may perhaps have helped if material had been placed before the authorities as to the nature and magnitude of the exports of the two classes of groundnuts, their relative prices and the duty impact there on.
In the absence of any such material, we find it diffi cult to hold that the commodity in question should be excluded because of the mode of computation of duty 153 prescribed by the tariff entry.
Once it is realised both oil seeds and roasted ground nuts exported by the assessee are capable of being described as 'groundnut kernel ', which is what the entry talks of the various circumstances pointed out that they have different markets, that their end use is different, that one of them has been excepted from the export ban that their export is done under the auspices of different Export Promotion Coun cils all fall into place and reveal no inconsistency with, and have no bearing on, the interpretation to be placed on the entry.
For these reasons, we are of opinion that the stand of the Revenue has to be upheld and the decision of the Madras High Court in Kalaivani Fabrics (supra) overruled.
These appeals, therefore, fail and are dismissed.
We, however, make no order as to costs.
R.S.S. Appeals dis missed.
|
The appellants purchased groundnuts without shell in raw form, and after subjecting them to various processes and treatment, packed them in packets and tins which were then exported.
The goods were charged to duty under item 13 of the Second Schedule to the Indian Tariff Act 1934 and, later, under item 20 of the Second Schedule to the as 'groundnut kernel '.
The appellant however contended that the product exported by it was "processed peanuts", and since the product exported by the assessee, though basically groundnuts, had been so processed and treated that it lost its quality of germination, it could no longer be described as 'groundnut kernel '.
Another argument of the appellant was that groundnut kernel could be said to be of two varieties one an edible variety, and the other a variety used for oil extraction purposes, and that the tariff entry should be confined only to groundnut kernel of the oil yielding variety and not the variety exported by the assessee, which could be more appropriately described as "processed food" rather than as "groundnut kernel".
The appellant 's contentions were rejected by the Collec tor of Customs, on appeal by the Central Board of Excise and Customs and, on further revision, by the Government of India.
Subsequently, the contentions were rejected by a Full Bench of the Customs, Excise & Gold Control Appellate Tribu nal.
Before this Court, the appellants while reiterating the submissions made before the authorities below, contended that the entry in the export tariff should be given a re strictive interpretation and if there was any ambiguity or doubt it should be resolved in favour of the assessee.
It was further submitted that, in matters of export and import, the func 142 tional test was slowly replacing other tests.
On the other hand, it was contended on behalf of the Revenue that: i) the expressions 'groundnut kernel and 'groundnut shell ' used in the export entry were of widest connotation: (ii) there was no justification whatsoever for restricting the meaning of the word 'kernel ' on the basis of the capaci ty to germinate or to yield oil; (iii) the functional test may be attracted where there was a bifurcation or classifi cation as in the entries, but there was no justification to import any such test where the expression.
as in this in stance, was broad and unrestricted; and (iv) groundnut kernel remains groundnut kernel even after roasting and frying and the processing and treatment did not create a different product.
Dismissing the appeals, this Court.
HELD: (1) There is no difficulty or ambiguity in the interpretation of the tariff entry.
Groundnut is a well known commodity which is available both in shell and as kernel.
In this context, 'kernel ' clearly means the grain, seed or the soft matter inside the shell, whatever the use or purpose to which it is put, eating or crushing for oil or sowing.
The tariff entry covers all groundnut and there is no justification for confining it to the germinating or the oil seed variety alone.
[151C D] M/s Health ways Dairy Products Co. vs Union of India & Ors.,[1976] 2 SCC 887, referred to.
(2) Assuming that two different commercial commodities fall under the same entry, there is no reason why the entry should be restricted to only one of them.
It can and should cover both unless one can say that the commodity marketed by the appellant is not 'groundnut kernel '.
[151E] Diwan Chand Chainart Lal 's Case [1977] 39 STC 75, referred to.
Though the raw groundnut kernel has undergone a dry ing, roasting and frying process, its identity as groundnut is not lost.
Even in the market to which it is exported and where it is marketed, it is purchased as groundnuts.
[I51G] (4) The legislature must be presumed to know that, for import purposes, for instance, groundnuts are classified under different headings with differential rates of duty.
Those entries appear not elsewhere 143 but in the First Schedule of the very enactment which sets out the export tariff.
If, in spite of such detailed classi fication elsewhere, the legislature decided to use a wider expression in the Second Schedule.
the intention of the legislature must be given effect to.
[152C D] (5) Once it is realised that both oil seeds and roasted groundnuts exported by the assessee are capable of being described as 'groundnut kernel ', which is what the entry talks of, the various circumstances pointed out that they have different markets, that their end use is different, that one of them has been excepted from the export ban, that their export is done under the auspices of different Export Promotion Councils all fall into place and reveal no incon sistency with.
and have no bearing on, the interpretation to be placed on the entry.
[153B C] Kalaivani Fabrics vs Collector, , Over ruled.
|
ivil Appeal Nos.
1894, 1895 & 1896 of 1990.
From the Judgment and Order dated 9.2.1989 of the Punjab & Haryana High Court in Civil W.P. Nos.
1778, 1776 & 1777 of 1989.
528 Balbir Singh Wasu, N.S. Das Bahl for the Appellant.
Har Dev Singh and Ms. Madhu Moolchandani for the Re spondents.
The Judgment of the Court was delivered by KASLIWAL, J.
Special leave granted.
All these petitions by Special leave are disposed of by one single order as identical questions of law are involved and they are directed against the similar order of the High Court dated 9th February, 1989.
Short controversy raised in these cases is regarding the grant of benefits under amended Sections 23(1 A), 23(2) and 28 of the Land Acquisition Act, 1894 as amended by the Land Acquisition (Amendment) Act, 1984 (hereinafter referred to as the Amending Act).
The President Land Acquisition Tribu nal, Hoshiarpur (District Court) initially granted solatium at 15% on the compensation and interest at 6% per annum on the additional amount of compensation till the date of payment.
The claimants 'submitted an application for modifi cation of the award as regards solatium and interest in view of the Amending Act which came into force on 24th September, 1984.
The Land Acquisition Tribunal granted benefit of the Amending Act and modified the award by passing the following operative order which is subject matter of challenge in Special Leave Petition No. 9434 of 1989.
Similar orders have been passed in other two cases also.
"Accordingly, I modify the award to the extent that solatium shah be payable at the rate of 30% instead of 15% granted earlier.
Similarly, interest at the rate of 12% per annum is granted from the date of notification under Section 42 of the Punjab Town Improvement Act, 1922, till the date of award of the Collector, the date of possession of the land which ever is earlier.
Further interest is awarded at the rate of 9% per annum on the enhanced amount from the date of delivery of possession till the expiry of one year.
Thereaf ter interest is awarded at the rate of 15% per annum from the date of expiry of period of one year till payment.
The applicant shall be entitled to recover the solatium and interest as per the modification indicated above ' '.
529 Aggrieved against the above order, the Hoshiarpur Im provement Trust has come before this Court.
In order to decide the controversy, it would be neces sary to mention some important dates in each of the above cases.
In Special Leave Petition No. 9434 of 1989 the award was given by the Land Acquisition Collector on 6th January, 1979.
On a reference the award was given by the President Land Acquisition Tribunal, Hoshiarpur on 28th March, 1983.
The award was modified by the President Land Acquisition Tribunal by order dated 29th August, 1988.
The High Court dismissed the Writ Petition filed by the Improvement Trust on 9th February, 1989.
In Special Leave Petition No. 9521 of 1989 the award was given by the Land Acquisition Collector on 30th April, 1982.
On a reference the award was given by the President Land Acquisition Tribunal, Hoshiarpur on 29th August, 1985.
The President Land Acquisition Tribunal modified the award by order dated 29th August, 1988.
The Writ Petition filed by the Improvement Trust was dismissed by the High Court on 9th February, 1989.
In Special Leave Petition No. 10 130 of 1989 the award was given by the Land Acquisition Collector on 30th April, 1982.
On a reference the award was given by the President Land Acquisition Tribunal, Hoshiarpur on 29th August, 1985.
The award was modified by the President Land Acquisition Tribunal by order dated 14th September, 1988.
Writ Petition filed by the Improvement Trust was dismissed by the High Court on 9th February, 1989.
Learned Counsel appearing on behalf of the Improvement Trust contended that no benefit could have been given under Section 23(1 A) which was inserted by the Amending Act.
It was contended that in a recent decision given by this Court in Union of India & Ors.
vs Mr. Filip Tiago De Gama of Vedem Vasco De Gama, JT it has been held that the additional amount under Sec.
23(1 A) can only be allowed in those cases where proceedings for the acquisition of any land under the Principal Act were pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisi tion (Amendment) Bill 1982 in the House of People), in which no award has been made by the Collector before that date.
If the Collector has made the award before that date then, the additional amount cannot be awarded.
Thus it was contended that the additional benefit of interest 530 at the rate of 12% per annum from the date of notification till the award made by the Collector or the date of taking over possession which ever is earlier, is liable to be set aside.
In order to appreciate the argument advanced by the Learned counsel appearing for the Improvement Trust, it would be necessary to give a background of some important events and decisions having a bearing on the question.
The Land Acquisition Act, 1894 (hereinafter referred to as the Principal Act) was sought to be amended and in this regard on 30th April, 1982, the Land Acquisition (Amendment) Bill, 1982 was introduced in Parliament.
On 24th September, 1984 it became law as the Land Acquisition (Amendment) Act, 68 of 1984, when it received assent of the President.
Before the amendment, Section 23(2) of the Principal Act provided for solatium at 15% on the market value, in consideration of the compulsory nature of the acquisition.
After amendment by Act 68 of 1984 solatium was raised to 30% on the market value under Section 23(2).
A Constitution Bench in Union of India & Another vs Raghubir Singh (dead) by L.rs.
; , , overruled; Bhag Singh vs Union Territory of Chandi garh; , and State of Punjab vs Mohinder Singh, held that the higher solatium at the rate of 30% would be given in cases of awards made by the Collector or the Court between 30th April, 1982 and 24th September, 1934.
In the cases before us the claimants have been rightly held entitled to solatium at 30% applying the ratio in the case of Union of India & Ors.
vs Raghubir Singh, (supra).
So far as the award of interest at the rate of 9% for the first year from the date of taking possession and 15% for the subsequent years is concerned, the claimants have been rightly held entitled to the same under Section 28 as stood amended by the Amending Act.
Now, the only controversy which remains to be considered is with regard to the additional benefit allowed by way of rate of interest at 12% per annum from the date of notifica tion issued under Section 42 of the Punjab Town Improvement Act, 1922, till the date of award of the Collector or the date of possession of the land which ever is earlier.
It is important to note that in the case of Union of India vs Raghubir Singh, (supra) the above question was neither called for consideration nor decided.
In Union of India & Ors.
vs Mr. Filip Tiago De Gama of Vedem Vasco De Gama, (supra) the above question directly came up for considera tion before this Court.
It was held that the above benefit has been provided under the amended Sections 23(i A) & 23(2).
531 The Legislature has given new starting point for operation of Section 23(1 A) for certain cases and it would be deter mined from Section 30(1)(a,) & (b) of the Transitional Provisions which read as follows: Section 30: Transitional Provisions: (1) The provision of Sub section (1 A) of Section 23 of the Principal Act, as inserted by clause (a) of Section 16 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to: (a) every proceeding for the acquisition of any land under the Principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amend ment) Bill 1982 in the House of the People), in which no award has been made by the Collector before that date.
(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act".
It was observed in the above case that Section 30(1)(a) provides that additional amount provided under Sec.
23(1)(a) shall be applicable to acquisition proceedings pending before the Collector as on 30th April, 1982 in which he has not made the award before that date.
If the Collector has made the award before that date then that additional amount cannot be awarded.
We agree with the view taken in the above case.
Thus applying the above principle in the cases in hand before us it would be clear that in Special Leave Petition No. 9434 of 1989 the award was made by the Land Acquisition Collector on 6th January, 1979 i.e. long before 30th April, 1982 and as such the claimant in the above case is not entitled to the benefit of Section 23(1 A) as inserted in the Principle Act by the Amending Act.
So far as the other two Special Leave Petitions, namely, 9521/89 and 10130/89 are concerned, the awards have been made by the Land Acqui sition Collector on 30th April, 1982 itself but not before that date.
Section 30 the Transitional Provisions clearly provide that the provisions of Subsection (1 A) of Section 23 of the Principle Act, as inserted by Clause (a) of Sec tion 16 of this Act shall apply to every proceeding for the acquisition of any land under the Principle Act pending on 30th day of April, 1982 in which no award has been made by the Collector before 532 that date.
In the above two cases the award has not been made by the Collector before 30th day of April, 1982 but made on 30th April, 1982 itself and as such the claimants in these two cases become entitled to the benefit of Section 23(1 A).
As a result of the above discussion the civil appeals in S.L.P. (C) Nos.
952 1 of 1989 & 10 130 of 1989 stand dis missed.
So far as appeal in Special Leave Petition No. 9434 of 1989 is concerned, it is allowed in part and the order of the High Court as well as that of the President Land Acqui sition Tribunal is modified only to the extent that interest shall be allowed at the rate of 6% per annum instead of 12% per annum from the date of Notification under Section 42 of the Punjab Town Improvement Act, till the date of award of the Collector or the date of possession of the land which ever is earlier.
So far as other additional benefits granted by the President Land Acquisition Tribunal are concerned, the same would remain in tact.
In the facts and circum stances of the case there would be no order as to costs.
T.N.A. Appeal allowed partly.
|
The lands of the respondents were acquired for a scheme of the Appellant Improvement Trust.
The awards for compensa tion were made by the Collector on 6th January, 1979 and 30th April, 1982 and the reference was disposed of by the Land Acquisition Tribunal by its award dated 28th March, 1983 and 29th August, 1985 by granting solatium @ 15% on compensation and interest @ 6% on excess compensation.
In view of the Land Acquisition (Amendment) Act, 1984 the landowner claimants made an application to the Tribunal seeking enhanced solatium and interest under the amended provisions of Land Acquisition Act, 1894.
The Tribunal allowed the application by granting higher solatium, addi tional benefit of interest and interest on excess compensa tion.
The writ petitions filed by the Appellant Improvement Trust against the decision of the Tribunal were dismissed.
Hence these appeals by the Improvement Trust.
Allowing the appeal in part (C.A. No. 1894 of 1990) and dismissing the connected appeals, this Court, HELD: 1.
The benefit of higher solatium @ 30% under section 527 23(2) of the Land Acquisition Act, 1894 is applicable to cases of awards made by the Collector or the Court between 30th April, 1982 and 24th September, 1984.
In the instant case since the awards were made between the aforesaid dates the claimants have been rightly held entitled to enhanced solatium.
[530E] Union of India vs Raghubir Singh, ; , fol lowed.
Section 30(1)(a) of the Land Acquisition (Amendment) Act, 1984 clearly provides that the additional amount of interest provided under Section 23(1 A) of the Land Acquisi tion Act, 1894 shall be applicable to acquisition proceed ings pending before the Collector as on 30th April, 1982 in which he has not made the award before that date.
If the Collector has made the award before that date then addition al amount Cannot be awarded.
[531E] 2.1 The claimant in the Appeal (No. 1894 of 1990) is not entitled to additional benefit of interest under Section 23(1 A) because the award in this case was made long before 30th April, 1982.
But the claimant in the connected appeals are entitled to this benefit since in their cases the awards were made on 30th April, 1982 itself.
[531F; 532A] Union of India vs Raghubir Singh, , explained and held inapplicable.
Union of India vs Filip Tiago De Gama, J.T. 1989 4 S.C. 529, followed.
The award of interest on excess compensation is valid since the claimants were entitled to the same under section 28 as it stood amended by the Amending Act.
[530F] 4.
The order of the High Court and the Land Acquisition Tribunal in Civil Appeal No. 1894 of 1990 is therefore modified, only to the extent that interest shah be allowed at the rate of 6% per annum instead of 12% per annum.
The other additional benefits granted by the Tribunal shall remain in tact.
[532B C]
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JURISDICTION: Civil Appeal No. 3412 13 of 1986.
From the Judgment and Order dated 19.4.85 of the Madhya Pradesh High Court in Misc.
Petition Nos. 259 and 503 of 1982.
157 Shanti Bhushan (N.P.), B. Dutta, S.K. Jain, Pradeep Aggarwal and Mrs. Pratibha Jain for the Appellants.
M.K. Ramamurthy, R.K. Garg, C.K. Ratnaparkhi, Arun Madan, S.K. Agnihotri and S.V. Deshpande for the Respond ents.
Respondent No. 15 In person.
The Judgment of the Court was delivered by OJHA, J.
These two civil appeals by special leave have been preferred against the common judgment of, the Madhya Pradesh High Court rendered in two writ petitions being Miscellaneous Petition No. 259 of 1982 and Miscellaneous Petition No 503 of 1982.
Certain persons after being select ed by the Public Service Commission were appointed as Sales tax Inspectors in the State of Madhya Pradesh.
They shall hereinafter for the sake of convenience be referred to as existing Sales tax Inspectors.
In another Department of the Government of Madhya Pradesh, there were certain persons who were working as Block Level Extension Officers.
The Government of Madhya Pradesh reorganised Blocks all over the State as a result whereof 50% of the posts of Block Level Extension Officers were rendered surplus.
A policy decision was taken by the State Government to absorb the surplus employees in equivalent post in other Government Depart ments.
A meeting was held on 30th September 1965 in the office room of the Secretary Planning and Development De partment for settling principles and procedure for absorp tion of such surplus personnel which was attended by the Secretaries of the various Department of the Government, Director of Panchayat and Social Welfare, Director of Indus tries and Director of Public Instruction.
In that meeting general principles and procedure for absorbing the surplus personnel were settled and it was inter alia agreed that; "(a) the surplus staff should be absorbed on equivalent posts and carrying the same pay scale as far as possible.
But if they are absorbed on posts carrying slightly lower pay scale, their present pay scale should be protected; (b) they should be treated as having been transferred from one post to another so that there may be no break in their service.
" A Committee consisting of the Commissioner of Sales Tax, the Addi 158 tional Commissioner of Sales Tax and the Deputy Commissioner of Sales Tax, Headquarters, held an interview of such sur plus Block Level Extension Officers who were to be absorbed as Sales tax Inspectors and as a result of that interview they were appointed to the post of Sales tax Inspectors.
These appointments seem to have been made on various dates between 13th February, 1967 and 28th September, 1970.
The Block Level Extension Officers who were so absorbed as Sales tax Inspectors shall hereinafter be referred to as the absorbed sales tax Inspectors.
At this place it is necessary to refer to certain orders having a bearing on the matter of absorption as aforesaid.
The first such order in the se quence which deserves to be noticed is a Memo dated 29th March, 1967 issued in the name of Governor of Madhya Pra desh.
It provided: "The Ex Block Development Officers and the Ex Block Level Extension Officers have been exempted by the Government from the competitive examinations to be conducted by the Public Service Commission for the purpose of absorption as Sales tax Inspectors.
The selection of these personnel to the said post shall be done by the departmental selection committee.
" The other order which requires mention is a memorandum dated 22nd may, 1967 issued by the Government of Madhya Pradesh General Administration Department inter alia to all Departments of Government.
In contained certain decisions in respect of the surplus class III (Executive) ministerial and Class IV employees of the development blocks on their ab sorption in other Departments of Government.
These decisions inter alia were about fixation of pay and fixation of sen iority.
With regard to fixation of seniority it was provided that seniority should be fixed with regard to the completed years of service counted for fixation of initial pay and the number of increments allowed therein.
This Memorandum was also issued "By order and in the name of the Governor of Madhya Pradesh".
With reference to this Memorandum it was, by a subsequent Memorandum dated 8th November, 1967, provid ed that the State Government had further decided that the facilities granted to surplus personnel to the Development Blocks vide G.A.D. Memo under reference may also be extended to such employees absorbed in Class III executive posts.
this place it may be mentioned that the post of Sales tax Inspector is a Class III (Executive) post.
Another Order dated 19th July 1973 was issued by the Madhya Pradesh Gov ernment to all the Heads of the Departments regarding facil ities to the extra officials on being 159 absorbed in other Departments.
The provision with regard to seniority was the same as in the Memorandum dated 22nd May, 1967.
As is apparent from the seniority list dated 6th Janu ary, 1981 showing the position of the Sales tax Inspectors as on 1.4.80, the existing Sales tax Inspectors were con firmed on various dates between 1st November, 1956 and 5th October, 1968.
With regard to fixation of seniority of the absorbed Sales tax Inspectors on decision seems to have been taken till 15th February 1980 when an Order of that date was issued from the office of Sales tax Commissioner of Madhya Pradesh which provided that the Sales tax Inspectors men tioned therein who were absorbed between 1967 and 1970 were made permanent to that post according to the directions of the Government with effect from 31st March, 1967 (presumed date).
The seniority list referred to above indicates that the names of the absorbed Sales tax Inspectors are to be found at serial Nos.
21 to 104 having, 31st March, 1967 as the date of confirmation of all of them.
The existing Sales tax Inspector Soni Badri Prasad shown at serial No. 20 was confirmed on 22nd May; 1966 whereas the existing Sales tax Inspector Cangrade Dashreth Lal shown at serial No. 105 was confirmed on 1st April, 1967.
The existing Sales tax Inspectors as well as the ab sorbed Salestax Inspectors both felt aggrieved by the con firmation order of the absorbed Sales tax Inspectors with effect from 31st March, 1967, the seniority list aforesaid prepared on its basis as well as a subsequent seniority list dated 15th May, 1982.
The two writ petitions referred to above were filed in the High Court, one by the existing Sales tax Inspectors and the other by the absorbed Sales tax Inspectors.
Both of them were decided by a common judgment whereby the order dated 15th February, 1980 referred to above was quashed and seniority was directed to be fixed in accordance with the Recruitment Rules and general conditions of Service Rules.
It is this judgment which is the subject matter of these two civil appeals, both having been filed by some of the absorbed Sales tax Inspectors.
The contention of the existing Sales tax Inspectors is that the absorbed Sales tax Inspectors could not be con firmed on 15th February ', 1980 retrospectively with effect from a presumed date, namely, 31st March, 1967.
According to them the determination of seniority, taking confirmation as the basis, is erroneous as they were entitled to have the entire period between their actual appointment and confirma tion taken into consideration; whereas the grievance of 160 the absorbed Sales tax Inspectors is that since they had been working in another department of the State Government as Block Level Extension Officers from various dates between 13th November, 1956 and the actual date of their absorption, they were entitled to have the entire period of their serv ice as Block Level Extension Officers taken into considera tion and the fixation of their seniority on the basis of their having been confirmed from the presumed date of 31st March, 1967 is erroneous.
It was also sought to be urged before us on behalf of the existing Sales tax Inspectors that the appointment of the absorbed Sales tax Inspectors as Sales tax Inspectors was illegal having been made not in conformity with the relevant rules and without the recommendation of the Public Service Commission.
For the absorbed Sales tax Inspectors on the other hand it was urged that none of the rules relied on by the existing Sales tax Inspectors was applicable to the absorption as Salestax Inspectors of the surplus Block Level Extension Officers and that it was the executive instruc tions issued in this behalf particularly dated 29th March, 1967, 22nd May, 1967, 8th November, 1967 and 19th July, 1973 referred to above which applied to their absorption.
Having heard learned counsel for the parties and M.C. Katarpanch, respondent No. 15 in C.A. No. 3412 of 1986, we are, on the facts of the instant case, so far as this sub mission is concerned, of the opinion that the validity of the absorption as Sales tax Inspectors of the surplus Block Level Extension Officers does not deserve to be permitted to be challenged in these appeals and that we have to proceed on the basis that their appointment by absorption as Sales tax Inspectors was valid.
It is true, as has been pointed out on behalf of the existing Sales tax Inspectors, that the surplus Block Level Extension Officers when called for interview for the purpose of being considered suitable for absorption were required to bear themselves the travelling expenses and that fresh letters of appointment were issued to them after the interview.
In our opinion, however, these circumstances are of very little significance for discerning the true nature of their absorption.
In this connection it is of significance that no material has been brought to our notice to indicate that the services of the surplus Block Level Extension Officers had ever been factually terminated.
Again, notwithstanding the fact that the nature of their appointment as Salestax Inspectors after interview was temporary, they were allowed to uninterruptedly continue to hold the post of Sales tax Inspector and were subsequently not only confirmed on that post but were also given ad hoc promotions as Assistant Sales tax Officers.
Another circums 161 tance which is of significance in this behalf is that no relief for the quashing of their appointments was sought for by the existing Sales tax Inspectors in the writ petition flied by them before the High Court nor was, as is apparent from the judgment appealed against, any such relief pressed before the High Court.
In fact, even the fixation of their pay as Sales tax Inspectors consequent upon their absorp tion, which was done in accordance with the executive in structions referred to above, does not seem to have been ever challenged.
On the other hand it is specifically stated in the judgment appealed against: "It is not in dispute that the respondents 4 to 88 were absorbed in the Sales tax Department between 13.2 1967 to 28.9.1970 although the respondent State adds that they were in Government service in other governmental departments and some of them right from the year 1948 long before the petitioners were appoint ed as Sales tax Inspectors.
" It is for these reasons that we are of the opinion that now it is too late a stage to chal lenge the validity of appointment of the absorbed Sales tax Inspectors on that post.
Now coming to the question of seniority, the term "absorbed" in Service Jurisprudence with reference to a post in the very nature of things implies that an employee who has not been holding a particular post in his own right by virtue of either recruitment or promotion to that post but is holding a different post in a different department is brought to that post either on deputation or by transfer and is subsequently absorbed in that post whereafter he becomes a holder of that post in his own right and loses his lien on his parent post.
No one asserts that the instant one was a case of the absorbed Sales tax Inspectors being initially sent on deputation from the post of Block Level Extention Officer to the post of Sales tax Inspector and being subse quently absorbed in that post.
Consequently, when as pointed out by the High Court, it was not disputed that the surplus Block Extension Officers had been absorbed in the post of Sales tax Inspectors it is obvious that it was a case of absorption by transfer.
In this connection it would be useful to recapitulate that the minutes of the meeting referred to above held on 30th September, 1965 laying down the principles of procedure for absorbing the surplus per sonnel specifically stated that the surplus staff which was to be "absorbed" should be treated as having been trans ferred from one post to another so that there may be no break in their service.
" The question as to whether the fixation of seniority by the Government was valid or not has to be considered in the aforesaid background.
The crux of the problem, therefore, is as to what princi 162 pie should govern the fixation of inter se seniority of the Sales tax Inspectors who were directly recruited as such, namely, the existing Sales tax Inspectors and those who became holders of that post by absorption on transfer from one Government department to another, namely, the absorbed Sales tax Inspectors.
The competing claims are, as already indicated above, that whereas the existing Sales tax Inspec tors contend that the date of confirmation alone was not relevant and that even the period between the dates of their actual appointment and confirmation should be counted for fixing their seniority, the contention of the absorbed Sales tax Inspectors is that the entire period of their service as Block Level Extension Officers should also be taken into consideration while fixing their seniority.
In so far as the legal position with regard to fixation of seniority is concerned it may be pointed out that a Constitution Bench of this Court in Direct Recruit Class 11 Engineering Officers ' Association vs State of Maharashtra and Others, ; after a conspectus of various earlier decisions has inter alia held: "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirma tion.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointed continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of offici ating service will be counted.
" On its basic there is obviously substance in the asser tion of the existing Sales tax Inspectors that the period from the respective dates of their appointments to those of their confirmation deserve to be counted while fixing their seniority.
As regards the absorbed Sales tax Inspectors, even if their initial appointment as Sales tax Inspector is, for the sake of argument, taken to be irregular as was sought to be urged before us on behalf of the existing Sales tax Inspectors, the said appointment not being only ad hoc and they having continued in the 163 pOSt uninterruptedly till the regularisation of their serv ice, which event even if may be treated to have taken place on 15th February, 1980 when they were granted retrospective confirmation with effect from 31st March, 1967 they are entitled to have the entire period of their service as Sales tax Inspector counted inasmuch as their confirmation at any rate with effect from 15th February, 1980 cannot be said to be in violation of any rule.
The question which , therefore, remains to be considered is about the period during which they worked as Block Level Extension Officers before they were absorbed as Sales tax Inspectors.
Is the entire period to be taken into consideration or only a part of it and if so, what part or is the said period to be ignored in its entirety, are questions which call for an answer.
In R.S. Makashi vs I.M. Menon, ; the question of seniority arose among the members of the staff who, for maintaining a new department, had been drawn from four different sources.
It was pointed out that in such a situation it was inevitable that some reasonable principles had to be formulated for the determination of the inter se seniority of the personnel appointed to work in the differ ent categories of posts in the new organisation.
Rules for fixation of seniority were framed by the Government, validi ty of some of which was challenged on the ground of being violative of Articles 14 and 16 of the Constitution.
Rule 4(a) was one such rule.
A learned Single Judge of the High Court struck down that rule.
While reversing the judgment of the High Court it was held: "Almost the entire reasoning of the learned Single Judge is based on an assumption that there is an invariable "normal rule" that seniority should be determined only on the basis of the respective dates of appointment to the post and that any departure from the said rule will be prima facie unrea sonable and illegal.
The said assumption is devoid of any legal sanction.
We are unable to recognise the existence of any such rigid or inflexible rule.
It is open to the rule making authority to take a note of the relevant circum stances obtaining in relation to each department and deter mine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned departments and the courts will only insist that the rules so formulated should be reasonable, just and equitable.
Judged by the said test of reasonableness and fairness, the action taken by the Government in equating the clerical personnel which had rendered two years ' regular 164 service in other departments with the temporary Supply Inspectors of the CFD and in directing as per impugned Rule 4(a) that their inter se seniority shall be determined with reference to the length of service calculated on the basis of the said equation cannot be said to be in any way dis criminatory or illegal.
We are unable to accept as correct the view expressed by the learned Single Judge of the High Court that "while fixing the seniority in the higher post, it is not open to take into consideration any service ren dered in the lower post and that by itself spells out dis crimination." (Emphasis supplied).
Relying on the aforesaid decision it was held in Wing Commander J. Kumar vs Union of India and Others, ; "Equally untenable is the further plea advanced by the appellant that since the R & D is an integrated cadre, there cannot be any further classification of the officers com prised therein on the basis of the length of service put in by them in their respective parent services prior to their permanent statement in the R & D.
As pointed out by this Court in the decision in R.S. Makashi vs I.M. Menon, (supra), it is a just and wholesome principle commonly applied in such situations where persons from different sources are drafted to serve in a new service that their pre existing length of service in the parent department should be respected and preserved by taking the same into account in determining their ranking in the new service cadre.
Such a provision does not involve any discrimination violative of Article 16 of the Constitution." In K. Madhavan and Anr.
vs Union of India and Ors.
, it was held that it will be against all rules of service jurisprudence if, when a Government servant holding a post is transferred to the same or an equivalent post in another Government Department, the period of his service in the post before transfer is not taken into consideration in computing his seniority in the post to which he is transferred.
The transfer cannot wipe out his length of service in the post from which he has been trans ferred.
It is true that R.S. Makashi and Others as well as Wing Commander J. Kumar, (supra) were cases where new service was created in our opinion, on that ground alone the principle enunciated 165 therein cannot be treated as to be confined only to a case where new service was created.
The observations made therein are obviously based on equitable principles and it is those principles which were applied in the case of K. Madhavan (supra).
Reliance was placed by learned counsel for the absorbed Salestax Inspectors on the decision of this Court in the case of K.C. Vasudeva and Others vs Union of India and Others, where it was held that fixa tion of seniority between existing employees and those taken over from an autonomous body after its dissolution must be based not on mere compassion but on rational criteria having full consideration for rights of other parties affected and having nexus with efficiency in administration.
Government must apply its mind and give reasons for its exercise of power to give relaxation to one class of employees.
In our opinion the said decision in clearly distinguishable.
First ly, that was a case where employees not of another Govern ment Department but of an autonomous body were brought in a Government Department and in the matter of determination of seniority the period during which they had worked in the autonomous body was taken into account.
Emphasis was placed in that case on this circumstance when it was pointed out that such employees were new entrants into Government serv ice and even so they were given credit for their former service in the autonomous body.
Secondly, unlike the instant case in that case credit for the entire period of Service in the autonomous body seems to have been given.
What is, however, noteworthy is that it was specifically stated in paragraph 5 the report of that case that "it is perfectly within the power of the Government to have a rationalisation of the entire situation and if it thinks fit even to give weightage or credit for service" in the autonomous body.
The principle of giving weightage was approved by this Court in an earlier decision also in the case of S.G. Jai Singhani vs Union of India; , and is a well recognised principle in the sphere of determination of seniority.
In view of the legal position enumerated above, it is true that the claim of the existing Sales tax Inspectors that the period between the dates of their appointment and confirmation should be counted seems to be justified but it is equally true that the claim of the absorbed Sales tax Inspectors that the period during which they worked in their parent Department should also be taken into account, does not obviously appear to be off the mark.
If the period between the dates or ' appointment and confirmation of the existing Sales tax Inspectors was counted for fixing their seniority but the period during which the 166 absorbed Sales tax Inspectors worked in their parent Depart ment was ignored, the former would have obviously been placed on a more advantageous position but only to the prejudice of the latter as it would have amounted to sacri ficing their interest.
If, on the other hand, the periods referred to above in case of both the sets of Sales tax Inspectors was taken into account, it would have resulted in granting benefit of the absorbed Sales tax Inspectors at the cost of the existing ones and presumably including those who had already been promoted as Assistant Sales tax Officers, even prior to 22nd May 1967, inasmuch as the period during which they had served in their parent Department was much longer than the period of officiation of the existing Sales tax Inspectors.
This was the situation with which the State Government was faced and it was its duty to evolve some policy or equitable formula which did justice, as far as possible, to the competing claims of both the sets of Sales tax Inspectors.
It was apparently in search of such a formula that the State Government appears to have given retrospective confirmation to the absorbed Sales tax Inspec tors from a presumed date and determined the seniority on the basis of the dates of confirmation.
This section can be justified even on the well recognised principle referred to above of giving weightage in the matter of determination of seniority.
The principle formulated in the case of R.S. Makashi (supra) with reference to a rule of seniority namely that "the Courts will only insist that the rules so formu lated should be reasonable, just and equitable" with the result that if they meet this requirement the Court will not interfere, would in our opinion apply even to a case of executive action of determining seniority if the above test is satisfied.
It is also relevant to point out that no statutory rule has been brought to our notice which may run counter to the decision mentioned above taken by the govern ment.
The two rules to which our attention has been invited are (i) Madhya Pradesh Civil Services (General Conditions of Service) Rules 1961 and (ii) Madhya Pradesh Sales taX Subor dinate Class III Executive Service Recruitment Rules, 1966.
In so far as the 1966 Rules are concerned, they do not contain any provision about seniority.
The 1961 Rules, no doubt, deal with seniority in Rule 12 but having gone through the said Rule we are of the opinion that the case of the absorbed Sales tax Inspectors does not fail under any of the categories enumerated therein.
At this place, we may mention that nothing substantial has been brought to our notice by either party on ' the basis of which it could safely be said that on the peculiar facts and circumstances of this case already referred to above, the decision of the State Government did not satisfy the above said test and was either arbitrary or discriminatory.
167 In this view of the matter.
we are of the opinion that it was not a fit case for interference by the High Court in exercise to its jurisdiction under Article 226 of the Con stitution of India with the decision of the State Govern ment.
In the result, these civil appeals are allowed, the common judgment of the High Court in the two writ petitions referred to above set aside and both the said writ petitions are dismissed.
In the circumstances of the case, however, the parties shall bear their costs in this Court as well as in the High Court.
P.S.S. Appeals allowed.
|
A group of Block Level Extension Officers rendered surplus in their parent department were appointed as Sales Tax Inspectors, Class III (Executive) posts, in the respond ent State between 13th February, 1967 and 28th September, 1970.
By an order dated 29th March, 1967, they were exempted from the requirement of going through competitive examina tion for the purpose of absorption.
By memorandum dated 22nd May, 1967 it was provided that seniority of surplus Class III ministerial employees of the development blocks on their absorption in other departments shall be determined with regard to the completed years of service counted for fixa tion of initial pay.
By a subsequent memorandum dated 8th November, 1967 this facility was also extended to employees absorbed in Class III executive posts.
Another order issued on 19th July, 1973 on the subject maintained the provision with regard to seniority as contained in the memorandum dated 22nd May, 1967.
Subsequently these Sales Tax Inspec tors were made permanent to that post retrospectively with effect from 31st March, 1967 by an order dated 15th Febru ary, 1980.
In the combined seniority list prepared accord ingly some of the directly recruited Sales Tax Inspectors were shown junior to the absorbed Sales Tax Inspectors.
On cross petitions being filed by the existing Sales Tax Inspectors and the absorbed Sales Tax Inspectors assailing the seniority list the High Court quashed the order dated 15th February, 1980 and seniority was directed to be fixed in accordance with the Recruitment Rules and general condi tions of Service Rules.
In these appeals by special leave, it was contended for the existing Inspectors that the absorbed Inspectors could not be confirmed on 15th February, 1980 retrospectively with effect from a presumed date, namely, 31st March, 1967; that the determination of seniority taking 155 confirmation as the basis was erroneous as they were enti tled to have the entire period between their actual appoint ment and confirmation taken into consideration, and that the appointment of the absorbed Inspectors was illegal having been made not in conformity with the relevant rules and without the recommendations of the Public Service Commis sion.
For the absorbed Inspectors it was contended that since they had been working in another department of the State Government from various dates between 13th November, 1956 and the actual date of their absorption they were entitled to have the entire period of their service in that department taken into consideration and the fixation of their seniority on the basis of their having been confirmed from the presumed date of 31st March, 1967 was erroneous, that none of the rules relied on by the existing 'Inspectors was applicable to them, and that it was the executive in structions issued in this behalf particularly dated 29th March, 1967, 22nd May, 1967, 8th November, 1967 which ap plied to their absorption.
Allowing the appeals, the Court, HELD: 1.
The order of the State Government dated 15th February, 1980 giving retrospective confirmation to the absorbed Sales tax Inspectors from a presumed date and determination of inter se seniority on the basis of the dates of confirmation was valid.
[159H] 2.1 Once an incumbent is appointed to a post according to rule, his seniority shall be counted from the date of his appointment and not according to the date of his confirma tion.
His transfer to the same or an equivalent post in another Government department cannot wipe out his pre exist ing length of service in the parent department.
[162D; 164G] Direct Recruit Class II Engineering Officers ' Associa tion vs State of Maharashtra & Ors., ; ; Wing Commander J. Kurnar vs Union of India & Ors., ; and K. Madhavan & Anr.
vs Union of India & Ors.
, , referred to.
2.2 It is, however, perfectly within the power of the Government to have a rationalisation of the entire situation and determine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned department.
The Courts will only insist that the rules so formulated should be reasonable, just and equitable.
[165E; 166E] R.S. Makashi vs I.M. Menon, ; ; K.C. Vasudeva 156 S.G. Jai Singhghani vs Union of India, ; , referred to. 2.3 In the instant case, if the period between the dates of appointment and confirmation of the existing Inspectors was counted for fixing their seniority but the period during which absorbed Inspectors worked in their parent department was ignored, the former would have obviously been placed on a more advantageous position but only to the prejudice of the latter as it would have amounted to sacrificing their interest.
If, on the other hand, the periods of continuous service of both the sets of Inspectors was taken into ac count it would have resulted in granting benefit to the absorbed Inspectors at the cost of existing ones and presum ably including those who had already been promoted as As sistant Sales Tax Officers, even prior to 22nd May, 1967, inasmuch as the period during which they had served in their parent department was much longer than the period of offici ation of existing Inspectors.
This was the situation with which the State Government was faced and it was its duty to evolve some policy or equitable formula which did justice, as far as possible, to the competing claims of both the sets of officers.
The decision taken by the Government in the peculiar facts and circumstances of the case could not be said to be either arbitrary or discriminatory.
No statutory rule has been brought to Court 's notice which could run counter to it.
[165H; 166A D] 3.
The services of the absorbed Inspectors have not been shown to have ever been factually terminated in their parent department.
Again, though the nature of appointment of these officers in the Sales Tax Department was temporary they were allowed to uninterruptedly continue to hold the said post and were subsequently not only confirmed on that post but were also given ad hoc promotion as Assistant Sales Tax Officers.
Furthermore, no relief for the quashing of their appointment was sought for by the direct recruits before the High Court nor was any such relief pressed there.
In fact, even the fixation of their pay as Inspectors consequent upon their absorption, which was done in accordance with the executive instructions does not seem to have been ever challenged.
The validity of their appointment in the Sales Tax Department, therefore, could not be assailed.
[160G;
|
ivil Appeal No. 1811 of 1975.
From the Judgment and Order dated 18.4.1975 of the Allahabad High Court in Second Appeal No. 734 of 1975.
R.K. Mehta, Ms. Mona Mehta and S.K. Bagga (NP) for the Appellant.
P.K. Bajaj and Mrs. Rani Chhabra (NP) for the Respondents.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
This appeal by special leave arises from the judgment of the High Court of Judicature at Allaha bad dated April 18, 1975, dismissing the Second Appeal filed by the appellant.
Teja, the common ancestor, had five sons: Nanha, Mulle, Manna, Chhota and Ram Sahai.
All of them have died.
Appel lant Sita Ram is the son of Nanha.
Mulle had a son Nokhey who died in 1953 without any issue.
Respondent No. 2 Soney Lal is the son of Manna.
Kailasho Devi, respondent No. 3 is the widow of Ram Sahai.
Chhota Bhondey respondent No. 1, claims to be the son of Chhota which is disputed by the appellant.
The dispute in the appeal relates to sirdari holdings in Khata No. 72 and 73 in village Sambhalpur Sheoli in the State of Uttar Pradesh.
Lands in Khata No. 72 were originally entered in the names of Nanha, Manna and Ram Sahai in the revenue records and on their deaths the names of the appellant and respondents Nos. 2 and 3 were entered.
Respondent No. 3 sold her shares in these lands.
The lands in Khata No. 73 were entered in the name of Nanha alone and on his death the same were entered in the name of the appel lant.
Consolidation proceedings under the provisions of U.P. Consolidation of Holdings Act, 1953 (U.P. Act No. 5 of 1954) hereinafter referred to as 'the Act ' commenced in Village Sambhalpur Sheoli in the year 1969.
Respondent No. 1 filed objections to the entries and claimed one fourth share in the holdings in both the Khatas on the basis that he is the son of Chhota and that the said lands belonged to the joint Hindu family consisting of the sons of Tej Ram.
Respondents Nos. 2 and 3 filed objections claiming shares in the lands in Khata No. 73 on the ground that the said holding was jointly 187 acquired by Nanha and his brothers, Manna and Ram Sahai, and the name of Nanha was recorded in a representative charac ter.
The appellant contested the said claims and claimed that lands in Khata No. 73 were acquired by Nanha in his individual capacity and not on behalf of his family.
The appellant further claimed that respondent No. 1 could claim no interest in the holdings as he is not a member of the family.
The case of the appellant was that respondent No. 1 is not the son of Chhota but is the son of one Heera who was a resident of a different village.
The objections were considered by the Consolidation Officer, who, by order dated August 31, 1970, held that respondent No. 1 is the son of Heera alias Chhota.
He gave half share to the appellant and one fourth share each to respondents Nos. 1 and 2 in all the plots of the Khata No. 73 except plots Nos. 140, 141, 142/2, 142/3 and 143/3 which were given to the appellant exclusive ly.
The appellant as well as respondents Nos. 2 and 3 filed appeals against the said order of the Consolidation Officer.
The Assistant Settlement Officer (Consolidation), by Order dated February 8, 1971, allowed the appeal of the appellant and directed that Khata No. 73 will be continued in the name of the appellant alone inasmuch as the lands of the said Khata were acquired by Nanha between 1927 and 193 1 before the birth of respondent No. 1 and the said land was not the ancestral acquisition nor Nanha had acquired it in a repre sentative capacity.
The Assistant Settlement Officer, howev er, agreed with the findings of the Consolidation Officer that respondent No. 1 is the son of Heera alias Chhota and belongs to the family to which the appellant and respondent No. 2 belong.
The respondents went in revision against the said order of the Assistant Settlement Officer.
The said revisions were decided by the Deputy Director of Consolida tion by his Order dated May 13, 1971.
The Deputy Director allowed the revision of respondent No. 1 in full and held that he has got a share in Khata No. 72 along with the appellant and respondent No. 2 and since respondent No. 3 has already sold her share of Khata No. 72 the remaining three branches namely the appellant and respondents Nos. 1 and 2 are entitled to one third share each in the lands included in this Khata.
As regards lands in Khata No. 73 the Deputy Director disallowed the claim of the respondents in respect of plots Nos. 140, 141,142 and 143.
But with regard to other plots of Khata No. 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity and that the branches of Manna, Chhota and Ram Sahai also had a share in these plots and that the respond ents had acquired equal shares along with the appellant in these plots and their names may also be recorded over the same.
The appellant filed a writ petition in the High Court to challenge the said decision of the Deputy Director of Consolidation, 188 but the said writ petition was dismissed in limine by the High Court by order dated July 23, 1971.
The application filed by the appellant for grant of certificate of fitness to appeal to this Court under Article 133 of the Constitu tion was also rejected by the High Court by its order dated November 9, 1972.
The appellant, thereafter, filed the civil suit giving rise to this appeal on January 25, 1973 for a declaration that the order of the Deputy Director of Consolidation dated May 13, 1971, is without jurisdiction.
The said suit was contested by respondent No. 1.
He raised a preliminary objection that the suit was barred by Section 49 of the Act.
The Munsiff Hawaii, Kanpur, by judgment dated August 16, 1974 decided the said preliminary objection in favour of respondent No. 1 and dismissed the suit on the ground that it was barred by Section 49 of the Act.
The said judgment and decree of the Munsiff Hawaii was affirmed in appeal by the Additional District and Sessions Judge, Kanpur Etawah by judgment dated January 17, 1975.
The second Appeal filed by the appellant against the said judgment was dismissed in limine by the High Court by the judgment under appeal.
The only question which arises for consideration in this appeal is whether the suit filed by the appellant was barred by Section 49 of the Act.
In the instant case the consolida tion proceedings under the Act were taken during the period 1969 to 1971 and the suit was filed in 1973.
At that time Section 49 read as under: "49.
Bar to civil jurisdiction Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a notification has been issued under sub section (2) of Section 4 or adju dication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.
" Shri R.K. Mehta, the learned counsel for the appellant, has urged that the bar of Section 49 of the Act is not applicable to the suit of the appellant because the orders passed by the consolidation 189 authorities were without jurisdiction inasmuch as the con solidation authorities could not decide questions as to title to the lands as well as the question relating to the parentage of respondent No. 1 which the Civil Courts alone could decide.
The submission of Shri Mehta is that the bar of Section 49 of the Act is applicable in respect of only those matters which could be adjudicated upon by the consol idation authorities.
Shri Mehta has placed reliance on the decision of this Court in Suba Singh vs Mahendra Singh and Others, From a perusal of Section 49 it is evident that declara tion and adjudication of rights of tenure holders in respect of land lying in an area for which a notification has been issued under Section 4(2) and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, had to be done in accordance with the provi sions of the Act only and the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act, has been taken away.
The language used in Section 49 is wide and comprehensive.
Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by the notification under Section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of questions as to title in respect of the said lands.
This view also finds support from the other provisions of the Act and the amendments that have been introduced therein.
In the Act, as originally enacted, Section 12 made provision for filing of objections against the statement of plots and tenure holders prepared by the consolidation authorities and in sub section (4) of Section 12 it was prescribed that where the objection filed under subsection (1) involves a question of title and such question has not already been determined by a competent court, the Consolida tion Officer shall refer the question for determination to the arbitrator.
Sub section (5) of Section 12 laid down that all suits or proceedings in the Court of first instance or appeal in which a question of title in relation to some land has been raised shall be stayed.
Under subsection (6) Of Section 12 finality was given to the decision of the Arbi trator under sub section (4).
Similarly Section 20 made provision for filing of objections against statement of proposals prepared by the consolidation authorities under Section 19 of the Act.
Section 22 prescribed that where any objection filed under Section 20 involves a 190 question of title in or over land and such question has not already been finally determined by a competent court, the Consolidation Officer shall refer it to the Arbitrator for determination and all suits or proceedings of the first instance or appeal in which a question of title in relation to the same had been raised shall be stayed and the decision of the Arbitrator shall be final.
There was a similar provi sion for reference to arbitrator in Section 36.
These provi sions indicate that initially the Act envisaged that ques tions of title, if not finally determined by a competent court, shall, instead of being decided by the Courts, be decided by an Arbitrator and the decision of the Arbitrator would be final.
As a result the determination of questions of title was withdrawn from the jurisdiction of the Courts.
On a consideration of the scheme of the Act and the policy behind the legislation, in the light of the provisions referred to above, this Court has observed: "The scheme of that Act, the policy behind that legislation and the language of the relevant provisions clearly show that the Legislature did not want questions of title to be decided by the Civil Court when the consolidation proceed ings were under way.
It is perfectly plain that the frag mented holdings being converted into consolidated parcels of land is a complicated operation to be conducted by adminis trative authorities, and if long and frequent proceedings in Civil Courts hold up consolidation operations, the very transformation of land holdings in villages the legislature desired to produce .would have been indefinitely postponed and messed up.
It is thus obvious that at this stage Civil Courts should not intervene even if the questions were of heirship or title to property.
At the same time, the Legis lature did not want to hand over these complicated questions of title and the like to mere consolidation agencies, and so under Sections 12(4) and 22(1), it was provided that objec tions relating to title to land, if they cropped up at intermediate stages of these operations, were to be referred to arbitration." (p.420 21) Extensive amendments were made in the Act by the U .P.
Consolidation of Holdings (Amendment) Act, 1958 (U.P. Act No. 38 of 1958) whereby a number of sections including section 36, were deleted and various provisions, including sections 5, 7 to 12 and 22, were substituted.
As a result of these amendments the provisions with 191 regard to arbitration contained in Sections 12, 22 and 36 of the original Act were removed.
In sub clause (i) of Clause (b) of Section 5, as substituted, it was provided that all proceedings for correction of the records and all suits for declaration of rights and interests over land, or for pos session of land or for partition, pending before any author ity or court, whether of first instance, appeal, or refer ence, or revision, shall stand stayed, but without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said proceeding or suits before the consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereun der.
In sub clause (ii) of Clause (b) it was further provid ed that the findings of consolidation authorities in pro ceedings under the Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be.
In Section 9 as substituted, provision was made for issuing notice of the statement prepared under Section 8 of the Act to tenure holders concerned and to persons interested calling upon them to file before him objections, if any, disputing the correctness or nature of the entries in the extracts and pointing out of any omission therefrom.
In Section 10 of the Act provision was made for adjudication by the Consolidation Officer of the said objections in disputed cases.
In Section 11 provision was made for appeal against the orders passed by the Assistant Consolidation Officer and the Consolidation Officer under Sections 9 and 10.
Section 12, as substituted, prescribed that all matters relating to changes and trans fers affecting any of the rights or interests recorded in the revised records published under Section 1 1B for which a cause of action was non existent when proceedings under Sections 7 to 10 were started or were in progress may be raised before the Assistant Consolidation Officer as and when they arise but not later than the date of notification under Section 52 or under sub section (1) of Section 6 and that the provisions of Sections 7 to II shall mutatis mutan dis, apply to the hearing and decision of any matter praised under Section (1) as if it were a matter raised under the aforesaid Sections.
The scheme of the above mentioned amend ments introduced in the Act by the Amendment Act of 1958 was to empower the consolidation authorities to adjudicate on matters involving declaration of right and interests over land or for possession of land or for partition and suits or proceedings in that regard pending before any Court were to be stayed till such determination and after such determina tion.
the Court was to proceed with the said proceedings in the light of the findings of the consolidation authorities.
In other words the question as to title which were 192 earlier required to be determined by arbitration were to be adjudicated upon by the consolidation authorities under the Act.
From the Statement of Objects and Reasons for the Amendment Act of 1958 it appears that it become necessary to do away with the provisions for arbitration because it used to cause great delay and in order to inspire greater confi dence in the people in the adjudication of rights of tenure holders by consolidation authorities provision was made for a Second Appeal against orders passed by the Consolidation officer.
Further amendment was made in Section 5 of the Act by U.P. Act No. 21 of 1966 whereby clause (b) of sub section (1) of Section 5, as renumbered, was omitted and sub section (2) was added in Section 5.
By clause (a) of the said sub section (2) it has been provided that upon the publication of the notification under sub section (2) of Section 4 every proceeding for the correction of the records and all suits and other proceedings in respect of declaration of rights and interests in any land lying in the area, or for declara tion or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated.
In clause (b) of sub section (2) of Section 5 it is further provided that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suit or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereunder.
As a result of the said amendment which has been introduced in Section 5 the right of the Courts to adjudi cate in respect of declaration of rights or interest in any land lying in the area for which the notification has been issued under Section 4(2) or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act has been completely taken away and the adjudication of these rights is to be done by the consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereunder.
Section 49 of the Act which bars the jurisdiction of the civil and revenue Courts gives effect to the aforesaid provisions contained in Section 5(2) of the Act.
As a result of these amendments civil and revenue Courts have no role in the matter of determination of rights or interests in any land lying in the area for which notice has been issued under Section 4(2) of the Act or for the declaration or adjudication of any other right in regard to which proceed ings can or ought to be taken under the Act.
193 In Ram Adhar Singh vs Ramroop Singh and Others, ; this Court has dealt with the question whether a suit for recovery of possession filed by the plaintiff claiming to be 'Bhoomidar ' of the land and asserting that the defendant was a trespasser and not entitled to remain in possession of the property was covered by Section 5(2) of the Act as amended by U.P. Act No. 21 of 1966.
After consid ering the various provisions of the Act this Court held that "disputes of the nature which exists between the parties in the present litigation are all now within the jurisdiction of the authorities, constituted under the Act, to adjudicate upon" and on that basis it was held that the suit had abated under Section 5(2).
In Gorakh Nath Dube vs Hari Narain Singh and Others, ; this Court was concerned with a suit for cancellation of a Sale Deed to the extent of half share claimed by the plaintiff in fixed rates tenancy plots and for award of possession of the plaintiff 's share.
This Court held that the said suit had abated under Section 5(2) of the Act inasmuch as the claim made in the said suit could be adjudicated upon by consolidation courts.
Referring to Section 5 of the Act this Court has observed: "The whole object of this provision of the Act was to remove from the jurisdiction of ordinary civil and revenue courts, for the duration of consolidation operations, all disputes which could be decided in the course of consolidation pro ceedings before special courts governed by special proce dure.
Such adjudication by consolidation authorities were considered more suitable, just and efficacious for speedy decisions which had to be taken in order to enable consoli dation operations to be finalised within a reasonable time.
(P.341) This Court has held that questions relating to the validity of sale deeds, gift deeds and wills could be gone in proceedings before the consolidation authorities because such questions naturally and necessarily arose and had to be decided in the course of adjudication on rights or interests in land which are the subject matter of consolidation pro ceedings.
A distinction has, however, been made between cases where the document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have.legal effect.
With regard to cases falling in the first category it was held that such a claim can be 194 adjudicated by consolidation courts on the view that an alienation made excess of power to transfer would be, to the extent of the excess of power, invalid and an adjudication on the effect of such a purported alienation would be neces sarily implied in the decision of a dispute involving con flicting claims to rights, or interests in land which are the subject matter of consolidation proceedings.
But as regards cases falling in the second category where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it was held that the consolidation authorities would have no power to cancel the same and it must be held to be binding no them so long as it is not cancelled by a court.
In the instant case respondent No. 1 was claiming an inter est in the land lying in the area covered by notification issued under section 4(2) on the basis that he is the son of Chhota, brother of Nanha and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers.
This claim which fell within the ambit of Section 5(2) had to be adjudicated by the consolidation authorities.
Since it was a matter falling within the scope of adjudicatory functions assigned to the consolidation authorities under the Act the jurisdiction of the Civil Court to entertain the suit in respect of the said matter was expressly barred by Section 49 of the Act and the suit of the appellant was rightly dismissed on that ground.
Suba Singh vs Mahendra Singh, (Supra), on which reliance has been placed by the learned counsel for the appellant,has no application to the present case.
That case related to the year 1956 i.e. before the Amendment Act of 1958.
At that time provision relating to arbitration were contained in Sections 12(4) and 21(1) of the Act.
The provisions of sections of Section 49 of the Act which were in force at that time had a narrower scope and the jurisdiction of the Civil Court was barred "with respect of any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of the Act.
" In that case after the scheme for consolidation under Section 23 of the Act had been confirmed one Jag Ram, who was held to be a Bhoomidar under the Scheme, had died.
Jag Ram had four sons including Ram Bhajan who hadpre deceased Jag Ram.
The plaintiff appellant claimed himself to be the son of Ram Bhajan and had applied for mutation in the consolidation proceedings on that basis which was allowed.
Thereafter he approached the Civil Court for partition of the property of Jag Ram.
The question was whether the said suit was barred by Section 49 of the Act.
This Court held that it was not so barred on the view that the 195 question as to who were the heirs of Jag Ram was not a matter arising out of consolidation proceedings and further that the said question of inheritance to the estate of Jag Ram arose after the consolidation operations had been sub stantively completed.
In this context this Court has ob served that there is no provision in the Act for any dispute of title which arises subsequent to confirmation of the statement under Section 23 to be decided by way of arbitra tion or otherwise and that the consolidation authorities had no jurisdiction to determine finally the complicated ques tion of title when the cause of action had arisen subsequent to the finalisation, publication and even implementation of the consolidation scheme so far as Jag Ram was concerned.
This would show that in this case this Court was considering the question whether a dispute as to title which arises subsequent to confirmation of the statement under Section 23 could be adjudicated upon by the consolidation authorities.
As pointed out earlier the position has been changed after the amendments that have been introduced in the Act by the Amendment Acts of 1958 and 1966.
For the reasons aforesaid we find no substance in this appeal and it is accordingly dismissed with costs.
R.S.S. Appeal dis missed.
|
In the course of consolidation proceedings under the U.P. Consolidation of Holdings Act, 1953, questions arose amongst the members of a family regarding the title to certain properties.
Respondent No. 1 filed objections to the original entries in respect of lands in Khata No. 72 and 73 on the basis that he was the son of Chhota, one Of the sons of Teja, the common ancestor.
Similarly, respondents Nos. 2 and 3 filed objections claiming shares in the lands in Khata No. 73 on the ground that the said holding was jointly acquired but was recorded in the name of Nanha in a repre sentative character.
The appellant contested the claims of respondents Nos. 1, 2 and 3.
The objections were considered by the Consolidation Officer, who held that respondent No. 1 was the son of Heera alias Chhota, brother of Nanha, and granted him his share in certain plots of the Khata No. 73.
The appellant as well as respondents Nos. 2 and 3 fried appeals against the said order of the Consolidation Officer.
The Assistant Settlement Officer (Consolidation) allowed the appeal of the appellant and directed that lands in Khata No. 73 will be continued in the name of the appellant alone.
The respondents went in revision against the order of the Assistant Settlement Officer.
The Deputy Director of Consolidation allowed the revision of respondent No. 1 in full in respect of share in Khata No. 72.
As regards plots in Khata No. 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity.
The appellant filed a writ petition in the High Court to challenge the decision of the Deputy Director of Consolida tion which was dismissed in limine.
185 The appellant, thereafter, 'filed the civil suit for a declaration that the order of the Deputy Director of Consol idation was without jurisdiction.
Contesting the suit, respondent No. 1 raised a preliminary objection that the suit was barred by section 49 of the Act.
The Munsiff decid ed the preliminary objection in favour of respondent No. 1.
The Additional District and Sessions Judge in appeal, af firmed the order of the Munsiff.
The second appeal filed by the appellant was dismissed by the High Court in limine.
Before this Court, it was contended on behalf of the appellant that the bar of section 49 of the Act was not applicable to the suit of the appellant because the orders passed by the consolidation authorities were without juris diction inasmuch as the consolidation authorities could not decide questions as to title to the lands as well as the question relating to the parentage of respondent No. 1 which the civil courts alone could decide.
Dismissing the appeal, this Court, HELD: (1) The language used in section 49 of the U.P. Consolidation of Holdings Act, 1953 is wide and comprehen sive.
Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by the notification under section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of ques tions as to title in respect of the said lands.
Accordingly, the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act has been taken away.
[189D E; C] Suba Singh vs Mahendra Singh and Others, ; Gorakh Nath Dube vs Hari Narain Singh, , referred to.
(2) In the instant case, respondent No. 1 was claiming an interest in the land lying in the area covered by the notification issued under section 4(2) on the basis that he was the son of Chhota, brother of Nanha, and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers.
This claim which fell within the ambit of section 5(2) had to be adjudicated by the consolidation authorities under the Act, and the jurisdiction of the Civil Court to entertain the suit in respect of the said 186 matter was expressly barred by section 49 of the Act and the suit of the appellant was rightly dismissed on that ground.
[194C D]
|
ivil Appeal Nos. 47(11 and 4702 of 1985.
From the Judgment and Order dated 12.12.
1983 of the Karnataka High Court in C.R.P. No. 3765 of 1981.
Dr. Y.S. Chitale Rameshwar Nath, Ravinder Nath and Sukumar Ghosh for the Appellants in C.A. Nos. 4701 and 4702 of 1985.
253 P. chidambram, S.S. Javali, H.R. Anantha Krishna Murthy and Ranjit Kumar for the Respondents in C.A. Nos. 4701 and 4702 of 1985.
The Judgment of the Court was delivered by VERMA, J.
These appeals by special leave are by the tenant and the sub tenant against a decree for eviction passed on the grounds of sub letting and the reasonable and bona fide requirement of the respondent landlord specified in clauses (f) & (h) of the proviso to sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961 (herein after called 'the Act ').
The Trial Court had rejected the landlord 's application.
for an order of eviction on these grounds, but the High Court in a revision under Section 50 of the Act has set aside the Trial Court 's order and passed the decree for eviction on these grounds.
Hence these ap peals.
The material facts are undisputed at this stage.
The premises comprises of two shops and a house adjoining the shops and belonged earlier to one T.A. Jotindranath Mudali ar.
The premises were let out by the original lessor to M/s. Bhoolchand Chandiram (Appellant in Civil Appeal No. 470 1 of 1985) on 4.10.1943 on terms contained in the letter dated 4.10.
1943 from the original lessor to M/s. Bhoolchand Chandiram which reads as under: "T.A. Jotindranath 933, Laxmipur Mudaliar.
Mysore, 4th October 43 To Messrs. Boolchand Chandiram, Silk Merchant, C/o Messrs. Bhagwandas Shyam sunder & Co., 112, Commercial Street, Bangalore Cantt.
Dear Sirs, With reference to your letter dated 30th Sept. 43 and your personal conversation about renting out my shops in 254 the Commercial Street, Bangalore Cantonment, it is agreed and confirmed that you are prepared to take the two shops at monthly rent of Rs.430 (Rs. Four hundred and thirty only) with two years agreement and three month 's advance and execute the necessary rental Deed, with the option of sub letting one of the shops.
As for the House adjoining the shops at monthly rent of Rs.50 (Rs. Fifty only) with one month 's advance and Eleven Month 's rental Deed.
You have the option of sub letting the house also.
Yours sincerely, sd/ T.A. Jotindernath Mudaliar" M/s. Bhoolchand Chandiram continued as a tenant in the premises and sometime in the year 1946 sublet one of the two shops to one 'Arts Palace '.
Later, w.e.f.
1.4.1948 the appellant M/s. Bhoolchand Chandiram inducted another sub tenant M/s. Super Dry Cleaners (Appellant in Civil Appeal No 4702 of 1985) in place of Arts Palace in the same shop.
In 1960, a partition took place in the Hindu Undivided Family of Mudaliar brothers, the original lessor and the suit premises fell to the share of Narendranath Mudaliar.
M/s. Bhoolchand Chandiram continued in the premises as the tenant with Super Dry Cleaners as the sub tenant in one shop from 1.4.
The original lessor (including Narendranath Mudaliar after partition in the HUF of Mudaliar brothers) continued to take rent from the tenant M/s. Bhoolchand Chandiram of the entire premises i.e. two shops and the house adjoining the shops till May, 1974.
On 28.6.1974, the said Narendranath Mudaliar executed a registered sale deed in favour of respondent No. 1, M/s. Kay Pee Cee Investments, a registered partnership firm comprising of three ladies of one family as partners, for the sale consideration of Rs. 1,40,000.
It may be mentioned that in a proceeding for fixation of standard rent between the original lessor and the tenant, monthly rent of Rs.325 was fixed for the entire premises i.e. two shops and the house and the rent due upto May, 1974 was paid by the tenant to the original lessor.
After execution of the said sale deed in favour of respond ent No. 1, the tenant attorned in favour of respondent No. 1 and paid rent for the entire premises @ Rs.325 per month to respondent No. 1.
The suit premises comprises of Shop.
Nos. 44 and 45 (New Nos. 1 & 2) in commercial Street, Bangalore Cantt.
and House No. 250 (New No. 22 Narain Pillai Street Cross).
Admittedly, the premises are 255 in a prestigious commercial locality of the city of Banga lore.
Respondent No. 1 landlord claims that the entire suit premises is reasonably and bona fide required by the land lord for its own business as agents of various textile mills for the purpose of opening a showroom for which it was purchased.
It is also alleged that one of the shops was unlawfully sublet w.e.f.
1.4.1948 giving rise to the other ground of sub letting also for eviction.
The respondent No. 1 gave a notice on 31.7.1975 terminating the appellant tenant 's tenancy.
Thereafter on 5.9.1975 a petition was filed by respondent No. 1 for eviction of the appellant on the grounds of sub letting and bona fide need of the land lord under clauses (f) & (h) of the proviso to sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961.
As earlier stated, the Trial Court dismissed the application, but the High Court has set aside that order and passed a decree for eviction on both the grounds.
The ground of sub letting is to be decided on the above undisputed facts on the basis of legality of the act of sub letting on 1.4.1948 in these circumstances.
The ground of bona fide need of the landlord is to be decided on the basis of the evidence led which is entirely oral from both the sides with reference to the infirmity, if any, in the High Court 's finding permitting interference therewith in these appeals.
Dr. Y.S. Chitale, learned counsel appearing for the appellant tenant assailed the High Court 's findings on both these questions.
Shri section Ghosh, learned counsel appearing for the sub tenant adopted the arguments of Dr. Chitale.
Shri Chidambaram, learned counsel appearing on behalf of the respondent No. 1 landlord has urged that there is no infirmity in the High Court 's decision on both the questions to permit any interference in these appeals.
We shall first take up the question relating to the landlord 's reasonable and bona fide requirement which is a ground for eviction under clause (h) of the proviso to sub section 1 of Section 21 of the Act.
It may be recalled that the Trial Court had negatived the existence of this ground while the High Court reversing that conclusion has held it to be proved.
The question before us is whether there is any infirmity in the High Court 's reversal of this finding justifying interference in these appeals.
Against the deci sion of the Trial Court, the provision made in Section 50 of the Act is of a revision and not an appeal to the High Court.
However, the power of revision is not narrow as in section 115 CPC but wider requiring the High Court to examine the impugned order for the purpose of satisfying itself as to the legality or correctness of such order or proceeding ' which enables the High Court to 'pass such order in refer ence thereto as it thinks fit '.
256 It is clear that the High Court in a revision under Section 50 of the Act is required to satisfy itself not only as to the legality of the impugned order or proceeding but also of its correctness.
The power of the High Court, therefore, extends to correcting not merely errors of law but also errors of fact.
In other words, the High Court in a revision under Section 50 of the Act is required to examine the correctness of not only findings on questions of law but also on questions of fact.
It is significant that the revi sion provided is directly against the Trial Court 's order and not after a provision of appeal on facts.
All the same, the power in revision under Section 50 of the Act cannot be equated with the power of the Appellate Court under Section 107(2) of the Code of Civil Procedure which is the same as that of the original court; and the revisional power under Section 50 of the Act even though wide as indicated, must fall short of the Appellate Court 's power of interference with a finding of fact where the finding of fact depends on the credibility of witnesses, there being a conflict of oral evidence of the parties.
It has, therefore, to be seen whether the High Court in the present case while reversing the Trial Court 's finding on the question of landlord 's reasonable and bone fide requirement of the suit premises exceeded its jurisdiction.
Admittedly, the only evidence led by the landlord for this purpose is oral comprising of the testimony of PW.
I Dinesh, the Power of Attorney holder of the landlord and son of one of the three ladies who were partners of that firm.
The evidence in rebuttal is also oral comprising essentially of denial of the plaintiffs requirement.
The credibility of the oral evidence adduced by the parties has to be assessed in the background of certain undisputed facts and circumstances.
It is undisputed that the respondent No. firm comprising of three partners, all women, belonging to a family of businessmen having textile business also was constituted in 1958 and the firm was registered in 1961; the power of attorney was given to PW 1 Dinesh, son of one of the partners, on 4.9.1970; the suit premises was purchased by the respondent No. 1 firm in 1974; respondent No. 1 firm has its business in one room on the third floor in a rented premises in Bangalore and it does not have any other premises for this purpose; and PW. 1 Dinesh is looking after the entire business of the respond ent No. 1 firm as a duly constituted attorney.
1 Thakur das Bhoolchand, proprietor of M/s. Bhoolchand Chandiram also admitted that the children of the ladies who were partners of the respondent No. 1 firm are carrying on the business and that business is being carried on 257 in a premise at Sakalji Market, Avenue Raod, Bangalore which according to respondent No. 1 is a rented accommodation.
RW. 1 has merely denied knowledge of the premises being taken on rent by respondent No. 1.
The question, therefore, is wheth er on these undisputed facts and circumstances the ,land lord 's reasonable and bona. fide need has been proved.
The Trial Court in deciding against the landlord was influenced considerably by the fact that in support of the landlord 's case 'no piece of documentary evidence is pro duced '.
The Trial Court accepted that the family of the respondent No. 1 carries on textile business but held it not proved that partition in the family has taken place to give rise to the requirement of respondent No. 1 firm for the suit premises when the joint family owns other premises in Bangalore.
According to the Trial Court, the respondent No. 1 firm is not a separate entity detached from the family.
The Trial Court was obviously in error in being influenced by the absence of any documentary evidence to support the need set up by respondent No. 1.
There is no finding record ed by the Trial Court of the existence of any document which was material for deciding the question and it being in possession of the respondent No. 1 had not been produced at the trial.
In the absence of any such finding, the effect of non production of any documentary evidence being put in scales against the landlord resulted in an infirmity permit ting the High Court to examine the correctness of the find ing even when it was based on the credibility of the oral evidence adduced by the parties.
Similarly, the suit prem ises belonging, admittedly, to the three ladies who were partners of the respondent No. 1 firm and to no other member of the family to which those ladies belonged, the premises, if any, belonging to other members of the family could not be taken into account for assessing the reasonable and bona fide need of the business of respondent No. 1 firm.
Since the three ladies constituting the respondent No. 1 firm come from a family having textile business and for the purpose of the suit premises, they being distinct from other members of the family with their separate business in a rented accommo dation in the same city, the Trial Court 's finding was vitiated by another infirmity when it failed to examine the need set up by respondent No. 1 firm in the correct perspec tive.
The High Court was, therefore, justified in re examin ing the correctness of the finding on this question correct ing both these errors which had vitiated the Trial Court 's finding.
These infirmities in the Trial Court 's finding clearly show that the weight of the Trial Court 's finding of fact in the present case was considerably reduced and the High Court in a revision under Section 50 of the Act was empowered to examine the cor 258 rectness of this finding after eliminating both the infirmi ties.
It is obvious that the partners of the respondent No. 1 firm belonging to a family already having large textile business would not purchase the suit premises in a presti gious commercial locality at Bangalore merely for earning the monthly rent of Rs.325 after investing the amount of Rs. 1,40,000 in 1974 to acquire the business premises.
This factor indicating the greater probability also has to be put in scales while assessing the landlord 's bona fide require ment set up in the present case.
Viewed in this manner, the High Court 's finding on this question based on the oral evidence adduced by the parties in the background of undis puted facts and circumstances of the case reaching the conclusion that the landlord 's reasonable and bona fide requirement of the suit premises for its own occupation is proved does not suffer from any infirmity which can justify interference therewith in these appeals.
This alone is sufficient to affirm the decree for eviction passed against the appellants in these appeals.
We shall now consider the other question relating to sub letting which is a ground for eviction specified in clause (f) of the proviso to sub section 1 of Section 21 of the Act.
The basic point for decision is whether the sub letting made by M/s. Bhoolchand Chandiram to M/s. Super Dry Cleaners of one shop which is a part of the suit premises w.e.f. 1.4, 1948 was unlawful being contrary to any provi sion of law then in force.
Considerable argument was ad vanced from both sides relating to the law then in force.
We may here indicate that existence of the ground of sub let ting loses much of its significance on our above conclusion that the landlord 's reasonable and bona fide need was right ly held proved by the High Court with the consequence that the decree for eviction can be sustained on that ground alone.
The ground of sub letting, however, remains of prac tical significance only for the purpose of applicability of sub section 4 of Section 21 of the Act since that would be attracted only if the ground of sub letting also found proved by the High Court, is not upheld herein.
If, however, this ground also is upheld, then the decree being passed even on this ground, the further question of greater hard ship to the landlord or the tenant under Section 21(4) of the Act would not arise.
It is for this reason that we consider it necessary to examine the question of subletting.
The main controversy between the two sides on the ground of sub letting is whether a written consent of the landlord for sub letting was necessary on 1.4.1948 when the sub letting was made and, if so, 259 was there such a written consent given by the landlord? The written consent of the landlord on which reliance is placed by the tenant as well as the sub tenant, the appellants in these appeals, is that contained in the above quoted letter dated 4.10.1943 of the original lessor.
Unless the written consent of the landlord contained in the above letter dated 4.10.1943 can be held to be subsisting on 1.4.1948 when the sub letting was made in favour of M/s. Super Dry Cleaners there , would, admittedly, be no written consent of the landlord to this subletting.
There is no controversy in this respect.
The first point for consideration, therefore, is whether the written consent of the landlord contained in the above quoted letter dated 4.10.1943 can be treated as subsisting and available on 1.4.
1948 when the subletting in question was, in fact, made.
There is no case set up by the tenant and sub tenant of any implied consent of the original lessor or waiver of the ground of sub letting and, therefore, that question does not arise for consideration.
The written consent of the landlord for sub letting on 1.4.1948 according to learned counsel for the appellants is to be found in the letter dated 4.10.1943 of the original lessor.
The consent of the landlord for sub letting is a question of fact.
Such consent is an act of volition of the landlord and is not to be inferred from any statutory provi sion.
The effect of the statute comes in, if at all, only for the purpose of ascertaining whether the landlord 's consent can be treated as subsisting after lapse of the period for which it was expressly given.
There being no compulsion on the landlord to give such consent it cannot ordinarily extend beyond the period for which alone it was expressly given.
Admittedly, the consent which was given by the original lessor in the present case is to be found only in the said letter dated 4.10.1943.
We must, therefore, see the consent given therein.
The aforesaid letter dated 4.10.1943 of the original lessor confirming the creation of the tenancy with effect from 4.10.1943 stated that two shops were let out on a monthly rent of Rs.430 for two years with the option of sub letting one of the shops; and the house adjoining the shops was let out on a monthly rent of Rs.50 for eleven months with the option of sub letting the house also.
There is no dispute that subsequently in a proceeding for fixation of the standard rent, the entire premises comprising of the two shops and the houses, was treated as one premises and the monthly rent of Rs.325 was fixed for the entire premises and this is how the tenancy was treated by both sides as one tenancy instead of two separate tenancies appearing in the 260 letter dated 4.10.1943.
The letter dated 4.10.1943 created contractual tenancy for a period of two years in respect of the two shops and for a period of eleven months for the adjoining houses.
Obviously, the consent of the landlord for sub letting mentioned therein by giving the tenant the option of sub letting cannot, therefore, be construed as consent for a period beyond the period of the contractual tenancy which was only two years in respect of two shops.
It would neither be reasonable nor appropriate to construe that the consent was given for any period after expiry of the period of contractual tenancy specified therein.
There is nothing in the said letter dated 4.10.
1943 10 suggest the continuance of the tenancy after the expiry of the specified period of contractual tenancy and, therefore, there could be no occasion to contemplate any consent for sub letting after expiry of the period of contractual tenancy of two years in respect of the two shops.
This is the factual position emerging from the aforesaid letter dated 4.10.1943 which alone is the basis of appellant 's assertion that sub letting w.e.f.
1.4.1948 was with the written consent of the original lessor.
Admittedly, creation of the sub tenancy w.e.f.
1.4.1948 in respect of one of these shops was long after the expiry of the period of contractual tenancy of two years specifically mentioned in that letter.
The question, there fore, is: whether the landlord 's consent given in the said letter dated 4.10.1943 could be treated as subsisting for creation of a valid sub tenancy w.e.f. 1.4.
1948 after the expiry of the period of contractual tenancy? The argument of Dr. Chitale, learned counsel for the appellanttenant, which has also been adopted by Shri Ghosh, learned counsel for the appellant sub tenant is that on expiry of the contractual tenancy, the tenant became a statutory tenant by virtue of the restriction on his evic tion except on one of the grounds for eviction provided in the statute and, therefore, all the terms and conditions of the contractual tenancy became the terms and conditions of the statutory tenancy.
On this basis, it was argued that the written consent of the landlord for sub letting during the period of the contractual tenancy continued to subsist as one of the terms and conditions of the statutory tenancy also.
It was argued that for this reason, even though the subletting was made w.e.f.
1.4.1948 after the period of the contractual tenancy, yet it too must be deemed to be with the written consent of the landlord which was available during the period of the contractual tenancy.
Dr. Chitale also referred to the fact that the first sub letting in 1946 to Arts Palace of the same shop which was later sublet w.e.f. 1.4.
1948 to M/s Super Dry Cleaners was also after expiry of the period of two years of the contractual tenan cy.
This fact, however, is not 261 material in the present case since the first sub letting ended before commencement of the second sub letting on 1.4.
1948 and it is only the validity of the subsisting sub letting w.e.f. 1.4.
1948 which is in question in the present proceedings.
Dr. Chitale relied on a number of decisions of this court in support of his contention ' that the written consent of the landlord for sub letting during the period of contractual tenancy continued as one of the terms and condi tions of the statutory tenancy when the sub letting was made w.e.f. 1.4.1948.
In reply, Shri Chidambram contended that the written consent of the landlord for sub letting is not one of the terms which ensures to the benefit of the tenant during subsistence of the statutory tenancy after expiry of the contractual tenancy.
The decisions cited at the Bar on this point are Damadilal and Others vs Parashram and Others, [1976] Supp.
SCR 645; Y. Dhanapal Chettiar vs Yesodai Ammal, ; ; Smt.
Gian Devi Anand vs Jeevan Kumar and Others, [1985] Supp. 1 SCR 1; Mahabir Prasad Verma vs Dr. Surinder Kaur; , ; M/s. Shalimar Tar Products Ltd. vs H.C. sharma and Others; , ; Shantilal Rampuria and Others vs M/s Vega Trading Corporation and Others, ; ; M/s. Bajaj Auto Limited vs Behari Lal Kohli, ; ; Duli Chand (Dead) by L.rs.
vs Jagmender Dass; , and Tara Chand and Another vs Ram Prasad, The decision in Damadilal 's case (supra) and others in the same line related primarily to the question of heritable interest in the premises of the legal representatives of the deceased tenant who was in occupation as statutory tenant.
Pointing out that the concept of statutory tenancy under the English Rent Acts and under Indian Statutes like the one with which we are concerned rests on different foundations, it was held that the statutory tenant had a heritable inter est in the premises which was not merely a personal interest but an interest in the estate like that of a contractual tenant.
On this conclusion, the right of legal representa tives of the statutory tenant to protect the possession and prosecute the appeal against eviction order was upheld.
The main question for decision in Damadilal 's case (supra) was the heritable nature of the statutory tenancy and it was in this context that the terms and conditions of a statutory tenancy were held to be the same as those of the contractual tenancy preceding it.
No question arose in Damadilal 's case (supra) of the right of a statutory tenant to create a sub tenancy after replacement of the contractual tenancy with the statutory 'tenancy.
The observations made and the deci sion rendered in Damadilal 's case (supra) cannot, therefore, be construed as holding that a statutory tenant has a right to create a sub tenancy 262 during subsistence of statutory tenancy after expiry of the contractual tenancy when the Rent Acts give the same protec tion against eviction tO the tenant except on one or more of the specified grounds.
Obviously, the protection to the statutory tenant and the heritable nature of the statutory tenancy providing the same protection against eviction to the tenant 's heirs does not further require conferral of the right of inducting a sub tenant which is not necessary for enjoyment of the tenancy and the protection against eviction given by the Rent Acts.
There is no rationale for inferring or extending the landlord 's written consent for sub letting beyond the period of contractual tenancy for which alone it is given.
No separate discussion of the later decisions in the same line is necessary because of the same distinction in all of them.
One decision which.
requires specific mention and is obviously nearest on facts to the present case is Mahabir Prasad Verma vs Dr. Surinder Kaur, ; In that case, the contractual tenancy was for a period of one month from 1.4.
1974 to 30.4.1974 with the landlord 's consent for sub letting.
The tenant continued to occupy the premises even after expiry of the contractual tenancy on 30,4.1974 and inducted therein a sub tenant.
The landlord sued for eviction of the tenant on the ground of unlawful sub letting of the premises which was a ground for eviction under the relevant Rent Act.
There was some dispute about the time of induction of the sub tenant, it being claimed by the tenant that the induction of the sub tenant was in the month of April, 1974 during subsistence of the contractual tenancy while the landlord contended that the sub letting was after the month of April, 1974.
It was found as a fact that the tenant had sublet in the month of April, 1974 when the written consent of the landlord subsisted and not subsequent to it in May as claimed by the landlord.
The crux of the question for decision therein was stated thus: "The crux of the question, therefore, is whether the sublet ting by the tenant with the written consent of landlord during the currency of the tenancy becomes unlawful and illegal on the determination of the tenancy and furnishes a ground for eviction within the meaning of section 13(2)(ii)(e) of the Act.
" On the finding that the sub tenant had been inducted during the period of contractual tenancy on the basis of the writ ten consent for subletting given by the landlord, the sub letting did not become unlawful merely because the contrac tual tenancy of the tenant came to an end and the protection against eviction to the tenant as a statutory tenant also 263 enured to the benefit of the lawful sub tenant recognised by the statute.
It was held as under: "Subletting lawfully done with the written consent of the landlord does not become unlawful merely on the ground that the contractual tenancy has come to an end.
Subletting to constitute a valid ground for eviction must be without the consent in writing of the landlord at the time when the tenant sub lets any portion to the sub tenant.
A subletting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub letting by the tenant without the written consent of the landlord Mere continuance in posses sion of a sub tenant lawfully inducted does not amount to any fresh or further sub letting.
We are, therefore, satis fied that in the instant case the tenant has not sub let any portion without the written consent of the landlady after the commencement of the Act . .
Mere continuance of possession by the subtenants lawfully inducted by the tenant with the written consent of the landlady contained in rent note does not afford any ground to the landlady for eviction of the tenant on the ground of sub letting, as the tenant has not sub let after the commencement of the Act any por tion without the consent in writing of the landlady." (emphasis supplied) Of all the decisions cited at the Bar, this decision is, admittedly, nearest on facts to the present case with the only difference that the sub letting in the present case was after expiry of the contractual tenancy and after the com mencement of the Act prohibiting subletting without the written consent of the landlord when it was made on 1.4.1948, while the sub letting in Mahabir Prasad 's case (supra) was during the period of contractual tenancy when the express written consent of the landlord for sub letting was available.
The principle for application, however, is the same with the only difference in the result since in Mahabir Prasad 's case (supra) the sub letting was made during subsistence of the contractual tenancy with the written consent of the landlord.
It is significant that the judgment in Mahabir Prasad 's case (supra) was by A.N. Sen, J. who also wrote the opinion in Gian Devi 's case (supra) relied on by Dr Chitale as one of the decisions in line with Damadilal 's case (supra).
It is clear that A.N. Sen, J., who wrote the 264 opinion of the Bench in Mahabir Prasad 's case (supra) as well as in Gian Devi 's case (supra) did not construe the earlier decisions starting with Damadilal 's case (supra) in the manner read by Dr. Chitale.
If Dr. Chitale is correct in his submission on this point, then the entire emphasis in Mahabir Prasad 's case (supra) on the sub letting being made during the period of contractual tenancy in April, 1974 and not thereafter being decisive of the validity of sub letting was misplaced and a futile exercise.
In our opinion this was not so and the correct premise is that landlord 's written consent for sub letting during the period of contractual tenancy cannot be construed as his consent subsisting after expiry of the contractual tenancy.
The submission of learned counsel for the appellants runs counter to the clear deci sion in Mahabir Prasad 's case (supra) which, in our opinion, is in no way contrary to the decisions starting with Damadi lal 's case (supra), the observations wherein are in the context of heritability of the statutory tenancy.
In fact.
it is rightly not even contended by Dr. Chitale that the decision in Mahabir Prasad 's case (supra) runs counter to Damadilall 's case Supra and other decisions following them.
This is sufficient to indicate that the appellants ' conten tion is untenable.
There is some controversy between the parties about the legislative history of the Rent Acts in the Bangalore Civil Station wherein the suit premises is located, but an in depth consideration of that controversy is not necessary.
The only question is: whether on 1.4.1948 when the sub letting was made in favour of M/s. Super Dry Cleaners, the contractual tenancy giving written consent for sub letting having expired was the written consent of the landlord for sub letting necessary under the statute then in force? It is sufficient to state that the Bangalore House Rent and Accom modation Control Act, 1946 was brought into force w.e.f. 1.10.1946 for a period of two years expiring on 1.10. 1948.
Later enactments were Mysore House Rent and Accommodation Control Act, 1951 and then Karnataka Rent Control Act, 1961 w.e.f.
31.12.1961.
The suit for eviction was filed in Sep tember, 1975 on the grounds contained in clauses (f) and (h) of the proviso to sub section 1 of Section 21 of the Karna taka Rent Control Act, 1961.
in the Bangalore House Rent and Accommodation Control Act, 1946 which applied at the time of sub letting in the present case on 1.4.1948 the provision for eviction of tenants was made in Section 9 thereof.
Sub section 2 specifies the grounds on which a landlord was entitled to seek eviction of his tenant.
One such ground in Sub section 2 is of sub letting and the relevant portion reads as under: "(iii) that the tenant has after the commencement of this 265 Law without the written consent of this landlord .
(a) sub let the entire building or any portion thereof; or ,, It is, therefore, clear that the written consent of the landlord for sub letting was necessary under the relevant statute applicable on 1.4.
1948 when the sub letting was made in the present case.
In fact.
this requirement of written consent of the landlord was the basis on which both sides argued the case and the main thrust of Dr. Chitale 's argument was that such a written consent was to be found in the letter dated 4.10.1943 of the original lessor.
We have, earlier, indicated that the landlord 's consent in the afore said letter dated 4.10.1943 was not available on 1.4.1948 after expiry of the contractual tenancy.
The rest is only a logical corollary to this conclusion leading to the inevita ble result that induction of the sub tenant M/s.
Super Dry Cleaners w.e.f. 1.4.1948 by the tenant M/s. Bhoolchand Chandiram was unlawful being made contrary to the provision of law then in force which constitutes the ground for evic tion contained in clause (f) of Sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961.
There is, thus, no ground to differ with the conclusion reached by the High Court that the ground of sub letting has been made out, even though our reasons are different.
On the above conclusion that the ground of sub letting also was rightly held proved by the High Court in addition to the ground of landlord 's reasonable and bona fide re quirement, the question of applicability of Sub section 4 of Section 21 of the Karnataka Rent Control Act, 1961 does not arise and, therefore, it is not necessary to examine the question of comparative hardship.
In that view of the mat ter, the appeals must fail.
Consequently, both the appeals are dismissed.
In view of the fact that the appellants are carrying on their business in the suit premises for a long time and will, therefore, need some reasonable time to shift to some other place, we grant to the appellants time till 31.3.1991 for vacating the suit premises and delivering vacant possession thereof to the landlord respondent No. 1, subject to undertaking in the usual terms being filed by the appellants within a period of four weeks.
No costs.
Y. Lal Appeals dis missed.
|
T.A. Jotindranath Mudaliar, the original lessor, let out his premises viz. two shops and a house adjoining the shops to M/s,Bhoolchand Chandiram, appellant on 4.10.1943 on the terms contained in the letter dated 4.10.1943 whereby the shops were let out on a monthly rent of Rs.430 for two years with the option of sub letting one of the shops and the house adjoining the shops was let out on a monthly rent of Rs.50 for eleven months with the option of sub letting the house also.
The appellant sub let one of the two shops to one 'Arts Palace ' and later w.e.f.
1.4.1948, the appellant inducted another sub tenant M/s. Super Dry Cleaners, appel lant in the other appeal.
Consequent upon a partition in the family of original lessor, the premises in dispute came to the share of Narendranath Mudaliar.
The original lessor including Narendranath Mudaliar after partition continued to realise rent from the tenant of the entire premises till May 1974.
On 28.6.1974, Narendranath Mudaliar sold the property in question to respondent No. 1.
The appellanttenants at torned in favour of respondent No. 1 and paid rent for the premises @ Rs.335 (fair rent fixed) to respondent No. 1.
Respondent No. 1 filed petition on 5.9.1975 for eviction of the appellant on the grounds of sub letting and bona fide need of the landlord under clauses (f) and (h) of the provi so to sub section (1) of Section 21 of the Karnataka Rent Act.
The trial court dismissed the application, but the High Court set aside that order and passed a decree for eviction on both the grounds.
Hence these appeals by the tenant and sub tenant have been filed after obtaining special leave of the Court.
The appellants question the findings of the High Court on both the questions viz. bona fide requirement of the landlord as also sub letting.
252 Respondent No. 1 on the other hand urged that there is no infirmity in the High Court 's decision on both the questions so as to warrant any interference in these appeals.
Dismissing the appeals, this Court, HELD: Landlord 's written consent for sub letting during the period of contractual tenancy cannot be construed as his consent subsisting after the expiry of the contractual tenancy.
[265D] A sub letting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub letting by the tenant without the written consent of the landlord.
Mere continuance in possession of a sub tenant lawfully inducted does not amount to any fresh or further sub letting.
[265E F] The sub letting in the instant case was after expiry of the contractual tenancy and after the commencement of the Act prohibiting sub letting without the written consent of the landlord when it was made on 1.4.1948.
[265B] Damadilal and Ors.
vs Parashram and Others, [1976] supp.
SCR 645; Dhanapal Chettiar vs Yesodai Ammal ; ; Smt.
Gian Devi Anand vs Jeerart Kumar and Ors., [1985] Supp. 1 SCR 1; L. Mahabir Prasad Verma vs Dr. Surinder Kaur, ; ; M/s. Shalimar Tar Products Ltd. vs H.C. Sharma and Ors.
, ; ; Shantilal Rampuria and Ors.
vs M/s. Vega Trading Corpn.
and Ors., ; ; M/s. Bajaj Auto Ltd. vs Behari Lal Kohli, ; ; Duli Chand (dead) by Lrs. & Ors.
vs Jagmender Dass, ; and Tara Chand and Ant.
vs Ram Prasad, , referred to.
|
vil Appeal Nos.
5036 39 of 1989.
From the Judgment and Order dated 22.10.1984 of the Punjab and Haryana High Court in L.P.A. Nos.
696,695,694 and 697 of 1982.
G.L. Sanghi, Dhruv Mehta (NP), Aman Vachher and S.K. Mehta for the Appellant.
V.C. Mahajan, Tapash Ray, A. Minocha, K.R. Nagaraja and R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by RAY, J.
These appeals on special leave are directed against the judgment and order passed by the Division Bench of the High Court of Punjab and Haryana in Letters Patent Appeal Nos.
694 to 697 of 1982 dismissing the appeals with costs.
The salient facts out of which these appeals have arisen, are as follows: The appellant Trust prepared a development scheme under section 24 read with section 28 of the Punjab Town Improve ment Trust Act, 1922 (hereinafter referred to as the Act) in relation to an area of about 60 acres of land at Palani Road.
The lands of the respondents fell within the said area.
On April 9, 1976 a notice under Section 36 of the Act was published in daily Tribune inviting objections till 5th May, 1976.
This notice was published in the three consecu tive weeks of the said newspaper dated 9th April, 15th April and 23rd April, 1976.
The very notice of the said scheme was also published under section 36 of the said Act in the Punjab Government Gazette on three consecutive weeks i.e. 7th May, 14th May and 21st May, 1976 inviting objections till May 5, 1976 against the scheme framed.
In accordance with the provisions of Section 38 of the said Act the Trust also served notice on every person who was occupier or owner of any immoveable property falling within the area proposed to be acquired in executing the scheme within 30 days from the date of publication of the notice under section 36, in order to enable the owners and occupiers of such pre 230 mises to file objections to such acquisition and to state their reasoning in writing within a period of 60 days of service of the notice.
After completion of the acquisition formalities, a notification under section 42 of the said Act was published on March 26, 1979.
The respondent No. 2 and ors.
assailed the appellant 's scheme notified under the Act in CWP No. 2561 of 1979 and CWP Nos. 4075, 36.15, 3654 of 1981 on the ground that they could not file objections against the scheme in terms of Section 36 of the Act till 5th May; 1976 as the notification was published in the Punjab Government Gazette on 7th May, 14th May and 21st May, 1976.
These writ petitions were allowed by order dated 25th February, 1982 and the sanctioned scheme notified under section 42 of the Act was quashed.
It was also mentioned in the said order that the appellant may, however, publish the scheme again either amended or unamended under section 36 of the said Act and proceed further in the matter in accordance with law.
It is against this order the L.F.A. No. 694 to 697 of 1982 were filed.
The Division Bench of the High Court affirmed the judgment and order of the learned single Judge and held that the provisions contained in Section 36 of the Act were mandatory and as it had not been complied with in the present cases, the illegality of non compliance of the mandatory provisions contained in Section 36 would not stand cured under Section 101 (1)(d) of the Act.
Hence the Letters Patent Appeals were dismissed.
Against this judgment and order the instant appeals on special leave have been filed in this Court.
Mr. Mahajan, learned counsel appearing on behalf of the respondent No. 2 and ors.
has very strenuously contended that the provisions of Section 36 of the said Act are mandatory inasmuch as it provides for publication of the notice as to the framing of the scheme under the Act in three consecutive weeks in the official Gazette as well as in the newspaper with a state ment inviting objections.
Though the notice was duly pub lished in the newspaper Tribune ' for three consecutive weeks on 9th, 16th and 23rd April, 1976 notifying the date for filing objections till 5th May, 1976 yet the notification that was published in the Punjab Government Gazette for three consecutive weeks was admittedly after the expiry of period of filing objections i.e. 5th May, 1976.
It has, therefore, been contended by Mr. Mahajan that due to non publication of the scheme in the Government Gazette before the expiry of the period of filing objections against the proposed scheme, the valuable right of the respondents to file objections against the scheme has been done away with.
As such the publication of the scheme was rightly quashed by the courts below as this mandatory requirement had not been complied with by the State.
In this connection, he has referred to the case of Prof. Jodh 231 Singh & Ors.
vs Jullundur Improvement Trust, Jullundur and Ors.
, This case was decided by the full bench of the High Court of Punjab and Haryana as to whether issuance of a notification under sub section (1) of Section 42 of the Punjab Town Improvement Act, 1922, would bar a challenge to the validity of the scheme or the govern mental sanction thereto for any reason including the reason that the scheme had been framed and sanctioned without compliance of the mandatory provisions particularly those of Sections 36, 38 and sub section (1) of Section 40 of the Act.
It was held that: "Since the given provisions do not merely provide for the framing of the scheme simpliciter but also provide for acquisition of property to enable the execution of the scheme and since no person can be deprived of his property without being heard and one cannot ask for hearing unless he knows that he is being deprived of his property, so, by necessary implication a notice of the intention of the authorities of acquiring a given person 's property is im pliedly necessary to enable him to bring to the notice of the concerned authority his objections against the, acqui sition of his property.
Hence such provisions as provide for notice, raising of objections and personal hearing in sup port of the objection would be mandatory in character.
" In that case a notice under section 38 of the Act was issued on the petitioner who submitted objections in time.
In the return filed on behalf of the Trust it was admitted that due to over sight, the petitioners could not be called for hearing along with other objectors as the objections filed by the petitioners had inadvertently got placed in some other file and that for the same reason their objec tions were neither considered by the Trust nor forwarded to the State Government along with the summary of the objec tions submitted at the time of sanction for the said scheme, It was contended on behalf of the Trust that the infirmity, if any, stemming from the non consideration by the Trust of the objections filed by the petitioners and sanction of the scheme by the Government in ignorance of the said fact stood cured by the provisions of sub section (2) of Section 42 of the Act.
It was in that context the above observation was made by the full bench.
Mr. Mahajan next contended that though admittedly no tices under section 33 of the said Act were issued on the respondent No. 2 and others who are either owners or occupi ers of the lands falling within the improvement scheme of the appellant and the respondent 232 No. 2 and others had filed objections against the proposed acquisition of their lands, yet on the basis of the said individual notices issued under section 38 of the said Act, the respondent No. 2 and others are debarred from raising objections against the proposed improvement scheme.
It is further submitted that under Section 38 the owners and occupiers of the land affected by the said scheme may merely object to the proposed acquisition of their lands but they cannot file objections against the scheme published.
The respondent No. 2 and others are therefore, deprived of their right to file objections against the scheme as provided in Section 36 of the said Act and so in view of the noncompli ance of the provisions of Section 36 of the said Act by the State Government, the development scheme cannot be enforced merely because the State Government notified the sanction of the scheme under section 42 of the Act.
The learned counsel appearing on behalf of the appellant on the other hand, contended that in compliance of the provisions of Section 36 of the said Act a notice regarding the framing of the development scheme was published in the newspaper 'Tribune ' for three consecutive weeks i.e. on 9th, 16th and 23rd April, 1976 inviting objections till 6th May, 1976.
It is only in the Punjab Government Gazette that the notification was published on 7th, 14th and 21st May, 1976 inviting objections till 5th May, 1976 i.e. the notification was made in the Punjab Government Gazette after the period for filing objections had expired.
It has also been contend ed that individual notices under section 38 of the said Act were served on the owners and occupiers of the immovable property falling under the development scheme intimating them about the acquisition of the land with particulars of the lands failing within the said scheme and inviting their objections to be filed within a period of 60 days from the date of service of the notice.
It has also been submitted that the respondent No. 2 and others i.e. the owners of the lands duly submitted their objections against the acquisi tion of the land as well as against the proposed scheme and the same were heard and considered by the prescribed author ity.
After the hearing of the objections, a notification was made by the State Government sanctioning the said scheme and also that this Trust shall proceed forthwith to execute the said scheme.
It has, therefore, been submitted that in these circumstances, the objections raised by the counsel for the respondent No. 2 and others are wholly unsustainable being devoid of any merit.
It is convenient to mention herein that the award deter mining the compensation was passed in 1980 and the compensa tion to the tune 233 of Rs.32 lakhs had already been paid.
A sum of Rs.2,30,465.08 had been spent for the construction of roads and foot paths.
Another sum of Rs. 1, 12,2 17.24 had been spent for lighting of the streets.
Another sum of Rs.3 lakhs had been paid to the Punjab Water Supply and Sewerage Board for sewerage purposes.
Thus, a sum of Rs.38,42,682.35 had already been spent for implementation of the scheme.
Several plots had already been sold in open auction.
The reference under section 18 of the Act is also pending.
In this context we are to consider the contention raised by the learned counsels for the respondent No. 2 and others.
Under section 24 and 28 of the Punjab Town Improvement Act, 1922, the impugned development scheme was prepared by the appellant Trust.
The scheme was notified as has been referred herein before in accordance with the provisions of Section 36 of the Act.
In so far as the publication of the scheme in the newspaper 'Tribune ' in three consecutive weeks in April, 1976 inviting objections thereto till 5th May, 1976 is quite in accordance with the provisions of the said section.
The Gazette Notification published in three consecutive weeks was however, made after expiry of the period of filing objections against this scheme.
This has been the bone of contention on behalf of the respondent No. 2 and others that this resulted in violation of the provisions of section 36 of the Act as their right to file objections against the scheme was set at naught.
This contention in our considered opinion is totally devoid of merit inasmuch as admittedly individual notices under section 38 of the said Act were duly served on all the owners and occupiers of the land falling within the said scheme and purported to be acquired and the respondent No. 2 and others admittedly filed objec tions against the proposed acquisition of their land.
The said objections were duly considered after hearing the respondent No. 2 and others and notice was issued sanction ing the scheme by the State Government.
In these circum stances, it does not lie in the mouth of respondent No. 2 and others to challenge the scheme on the mere plea that the Gazette Notification was not duly published.
The legislative intent of provision of section 36 read with section 38 of the said Act is to afford reasonable opportunity to the owners and occupiers affected by the proposed scheme to file objections not only against the scheme but also against the acquisition of their lands falling within the scheme and to achieve this purpose not only notifications in the Govern ment Gazette and newspaper are to be published but also individual notices on each of the person affected are to be served with details of the plots of land failing within the scheme and proposed to be acquired with a view to giving them adequate opportunity to file objections both against the scheme as well as against the proposed acquisition of their lands.
It is, therefore, incomprehensible to contend 234 that non observance of provisions of Section 36 of the said Act by not publishing the notification in the Govern ment Gazette before the expiry of the date for filing the objections renders the publication of the entire development scheme illegal and bad.
The above contention, in our consid ered opinion, is not at all sustainable on the simple ground that the respondent No. 2 and others were duly served with the notices under section 38 and they pursuant to that notice duly filed their objections against the acquisition as well as the scheme.
The decision of the full bench re ported in Prof. Jodh Singh and Ors.
vs Jullundur Improvement Trust, Jullundur & Ors.
(supra) is not applicable to this case inasmuch as in that case the objections filed under section 38 of the said Act having been misplaced were not at all considered and thereafter the Government issued a noti fication under section 42 of the said Act giving sanction to the scheme itself.
In that view of the matter, the said decision has no application to the instant case.
In these circumstances, considering from all aspects we hold that the decision of the courts below is wholly untenable in law and as such they are liable to be set aside.
We, therefore, set aside the decision of the learned single Judge as well as to the Division Bench of the High Court of Punjab and Haryana and allow the appeal setting aside the orders of the courts below.
There will, however, be no order as to costs.
G.N. Appeals allowed.
|
The appellant Trust prepared a development scheme under the provisions of the Punjab Town Improvement Trust Act, 1922 covering certain lands including that of the respond ents.
Notice inviting objections was published in a dally Newspaper on 9th, 16th and 23rd April, 1976.
It was also published in the Punjab Government Gazette on the 7th, 14th and 21st May, 1976.
The last date for filing objections was 5th May, 1976.
Notices were also served on each person whose land was to be acquired in accordance with Section 36 of the Act.
After completion of the acquisition formalities, noti fication under section 42 of the Act was published on 26th March, 1979.
Respondent No. 2 and others challenged the scheme noti fied under the Act by way of Writ Petitions on the ground that they could not file objections by 5th May, 1976 since the notification was published in the Gazette only thereaf ter.
The High Court allowed the Writ Petitions and quashed the notification sanctioning the scheme.
However, it ob served that the appellant may publish the scheme again either amended or unamended under section 36 of the Act and proceed further in accordance with law.
Against the said order, Letters Patent Appeals were flied, which were dis missed by the Division Bench.
Appellant has preferred these appeals by special leave.
On behalf of the appellant, it was mainly contended that infirmity, if any, stemming form the non consideration of the objections and the sanction of the scheme by the Govern ment in ignorance of the fact stood cured by the provisions of section 42(2) of the Act.
It was also contended that since Respondent No. 2 and others had flied objections in response to individual notices, they are debarred from raising objec tions against the proposed improvement scheme.
228 On behalf of Respondents if was inter alia contended that due to non publication of the scheme in the Government Gazette before the expiry of the period of filing objections against the proposed scheme, the valuable right of the respondents to file objections against the scheme has been done away with, contrary to the mandatory provision con tained in section 36 of the Act.
Allowing the appeals, this Court, HELD: 1.
It is incomprehensible to say that non observ ance of provisions of Section 36 of the Punjab Town Improve ment Trust Act, 1922 by not publishing the notification in the Government Gazette before the expiry of the date for filing the objections renders the publication of the entire development scheme illegal and bad.
[234A] 2.
The legislative intent of provision of section 36 read with section 38 of the Act is to afford reasonable opportunity to the owners and occupiers affected by the proposed scheme to file objections not only against the scheme but also against the acquisition of their lands failing within the scheme and to achieve this purpose not only notifications in the Government gazette and newspaper are to be published but also individual notices on each of the person affected are to be served with details of the plots of land failing within the scheme and proposed to be acquired with a view to giving them adequate opportunity to file objections both against the scheme as well as against the proposed acquisition of their lands.
[233G H] 3.
In the instant case, the development scheme was prepared by the appellant Trust, and was notified in accord ance with the provisions of Section 36 of the Act.
In so far as the publication of the scheme in the newspaper 'Tribune ' in three consecutive weeks in April, 1976 inviting objec tions thereto till 5th May, 1976 is quite in accordance with the provisions of the said section.
The Gazette Notification published in three consecutive weeks was however, made after expiry of the period of filing objections against this scheme.
Admittedly individual notices under section 38 of the said Act were duly served on all the owners and occupi ers of the land falling within the said scheme and purported to be acquired and respondent No. 2 and others admittedly filed objections against the proposed acquisition of their land.
The said objections were duly considered after hearing the respondent No. 2 and others and notice was issued sanc tioning the scheme by the State Government.
In these circum stances, it does not lie in the mouth of respondent No. 2 and others to challenge the scheme on the mere plea that the Gazette Notification was not duly published.
[233C F] 229 Prof. Jodh Singh & Ors.
vs Jullundur Improvement Trust, Jullundur and Ors., , distinguished.
[This Court set aside the decision of the Single Judge as well as that of the Division Bench of the High Court.] [234D]
|
vil Appeal Nos.
4890 91 of 1990.
From the Judgment and Order dated 17.10.1989 of the Madras High Court in C.R.P. Nos.
517 & 5 18 of 1989.
section Padmanabhan, P.N. Ramalingam and A.T.M. Sampath for the Appellants.
K. Parasaran, section Balakrishnan and Ms. Revati for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
Special Leave granted.
Counsel heard.
These two appeals are filed by Special leave against the judgment of the High Court of Madras in Revision Petitions Nos. 5 17 and 5 18 of 1989.
These appeals raise an interest ing question as to whether it is obligatory on the Court, before granting leave to institute a suit as required under section 92 of the Code of Civil Procedure, 1908, to give an opportunity to the respondents to show cause against the grant of such leave, and whether leave granted without such opportunity having been given is void.
The appellants instituted suit No. O.S. 55 of 1987 in the court of the learned subordinate Judge of Sivaganga in Tamil Nadu against the respondents as a representive suit inter alia praying for framing a scheme for a public char itable trust.
It is common ground that the reliefs prayed for in the suit were such that leave under section 92 of 269 the Civil Procedure Code was required for instituting the suit.
On the same day on which the suit was filed by lodging the plaint in court an application was made praying for leave to institute the suit under section 92 of the Code.
Without issuing any notice to the respondents, the said court granted leave by passing an order reading "permitted" and issued summons to the respondents.
In March, 1988 the respondents filed an interim application before the learned Subordinate Judge for revoking the leave granted inter alia on the ground that the respondents had not been given any opportunity to be heard before leave was granted.
The learned Subordinate Judge dismissed the said application on the ground that the grant of leave was an administrative act of the court and no notice to the respondents was required before such leave was granted.
The respondents then pre ferred a Civil Revision Petition in the Madras High Court which has been allowed by a judgment delivered by learned Single Judge.
He took the view that an analysis of the provisions of section 92 of the Code shows that in order to institute a representative suit as contemplated in the said section two or more persons must have an interest in the trust and they should have obtained the leave of the court before they institute the suit.
The learned Single Judge held that while the said section enables persons interested in a public trust to file a suit to secure the proper admin istration and management of the trust and its properties by its trustees, it also imposes a check on the institution of such suits by the imposition of certain conditions, one of which is the obtaining of leave from the court.
It was held that it is the grant of leave which confers on the person concerned a right to institute a suit under section 92 of the Code.
If there were any facts which might disentitle the applicants for leave from obtaining the leave of the court, these could be best brought to the notice of the court by the party arrayed on the opposite side.
The learned Judge also referred to the provisions of section 104(1) (ffa) of the Code whereby an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 is made appealable.
The learned Judge followed the decision of the High Court of Madras in T.M. Shanmugam and Others vs The Periyar Self Respect Propaganda Institu tion and Others, [1984] II MLJ 440; and held that as the leave had been granted without any notice to the respondents, it was void and liable to be set aside.
The learned Judge allowed the revision petitions, set aside the leave and held that the suit could not be entertained and was liable to be dismissed.
It is against this decision that these appeals have been peferred to.
Learned counsel for the appellants submitted that if the court 270 were required to give opportunity to the defendants to be heard before granting leave to under section 92, the grant of leave would entail a great deal of delay and might defeat the ends of justice where some urgent relief was required.
He pointed out that, if a defendant had a grievance against the grant of leave he could always made an application to revoke the leave and no serious prejudice would be caused to the defendant by the grant of leave.
Learned counsel for the respondents contended that leave under section 92 of the Code to institute a suit was a material requirement for maintenance of a suit.
Before granting leave the court was called upon to consider various aspects of the matter, namely, whether the suit was such as contemplated under section 92, whether the persons applying for such leave were fit persons to institute a representa tive suit and so on.
It was submitted by him that the court could not decide whether leave should be granted without giving an opportunity to the defendants to show cause against the grant of leave.
It was submitted by him that the grant of leave was a pre condition for instituting a 'suit under section 92.
Leave granted without giving any opportu nity to the defendant to show cause was void and a suit instituted on the basis of such void leave was not maintain able at all.
It was submitted by him that at the stage of grant of leave what the court is called upon to consider is the plaint and whether, prima facie, the suit proposed to be instituted was of the kind contemplated under section 92 of the Code, that is, whether the reliefs prayed for were such as were set out in section 92 and whether the suit was against a public trust.
It was also necessary for the court to consider whether, the proposed plaintiffs had an interest in the public trust and were fit persons for leave being granted to them.
The Court could also consider whether, prima facie, the allegations in the plaint were baseless or frivolous.
At that stage, it was necessary to give any notice to the defendant because he could point out the reasons why leave should not be granted.
Before considering the merits of the aforesaid conten tions, it would not be out of place to refer to the relevant provisions of the Code of Civil Procedure.
The relevant part of sub section (1) of section runs as follows: "92.
Public Charities (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charita ble or religious nature, or where the direction of the Court 271 is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other court empowered in that behalf by the State Gov ernment within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate to obtain a decree (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and enquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.
Section 104 provides for appeals against certain orders unless otherwise provided in the body of the Code or by any other law in force.
Clause (ffa) of that section runs as follows: "(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be.
" 272 We may mention that prior to its amendment in 1976, section 92 of the Code provided that leave of the Advocate General had to be obtained for the institution of a suit of the kind described in that section and not the leave of the court.
We may now discuss the main cases relied on by the learned Counsel for the respective parties.
Coming first to the cases relied upon by learned Counsel for the appellants, we find that the first decision cited by him was the deci sion of this Court in Swami Parmatmanand Saraswati & Anr.
vs Ramji Tripathi & Anr., ; at p. 796.
In that case it was held that to see whether the suit falls within the ambit of section 92, only the allegations in the plaint should be looked into in the first instance.
But, if, after the evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direc tion of 'the court is vague and is not based on any solid foundation of fact or reason but is made only with a view to bring the suit under the section then such a suit must be dismissed.
Learned Counsel next drew our attention to the decision of this Court in Charan Singh & Anr.
vs Darshan Singh & Ors., ; Section 92 of the Code before its amendment in 1976 was applicable to the case.
The court cited with approval the observations of Mukherjea, J., (as he then was), in Mahant Pragdasji Guru Bhagwandasji vs Patel Ishwarlalbhai Narsibhai and Others, reported in 13 which runs as follows: "A suit under section 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character.
Such suit can proceed only on the allegation that there is a breach of such trust or that directions of the court are necessary.
It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provisions of section 92, Civil Procedure Code . " Neither of the aforesaid decisions of this Court deal with the question as to whether, before granting leave to insti tute a suit under section 92, Advocate General, or later the Court, was required to give an opportunity to the proposed defendants to show cause why leave should not be granted.
What learned counsel for the appellants urged, however, was that these decisions show that at the time when the Advo cate General or the Court is required to consider whether to grant leave to institute a suit as contemplated under sec tion 92, it is only the averments in the plaint which have to be examined and hence, 273 the presence of the defendant is not necessary.
We may now consider the High Court decisions relied on by the learned counsel for the appellants.
In Prithipal Singh vs Magh Singh and Others, AIR 1982 Punjab and Haryana 137 a learned Single Judge of the Punjab and Haryana High Court held that the grant of leave to file a suit is not a mere irregularity which can be cured but is a condition precedent.
The provisions of section 92 are mandatory in nature in that respect.
He further held that in granting leave under section 92 of the Code, the court does not have to write a reasoned order.
It does not even have to give a notice to the defendant of an application for leave to file a suit as the order granting leave is of an adminis trative nature.
The same view was taken by a Division Bench of the Punjab and Haryana High Court in Lachhman Dass Udasi (deceased by L.R. 's) and Others vs Ranjit Singh and Others, AIR 1987 Punjab and Haryana 108 wherein it was held that no notice is necessary to be issued to the defendants prior to the granting or refusing of leave under section 92 of the Code as at that stage it is only the subjective satisfaction of the court that is required and, thus, the order is an order of administrative nature.
A Division Bench of the Kerala High Court also took the same view in P.V. Mathew and Others vs K.V. Thomas and Oth ers, AIR 1983 Kerala 5.
In that case it was held that along with the petition for leave the plaintiffs petitioners should produce in court the plaint for the court 's perusal to enable it to pass a proper order under section 92(1).
This does not preclude the court from requiring the produc tion of any other record necessary for a proper decision.
The court, if it is so satisfied, may grant the leave with out issuing notice to the respondents defendants or hearing them.
In coming to this conclusion, the Division Bench relied upon the earlier decision of the Full Bench of the Kerala High Court in Mayer Simon, Perur vs Advocate General of Kerala and Others, which was rendered before the amendment of Section 92 of the Code in 1976.
Learned Counsel referred to the judgment of a learned Single Judge of Allahabad High Court in Ambrish Kumar Singh vs Raja Abhushan Bran Bramhshan and Others, AIR 1989 Allaha bad 194.
In that case the learned Judge held that while granting leave the court does not decide the rights of the parties.
No right is adjudicated at this stage.
The court has merely to see whether there is a prima facie case for granting leave to file a suit.
This order does not in any way affect the final decision which will be given on merits after the parties have 274 led evidence in the suit.
Section 92 of the Code does not contemplate giving of any notice to the proposed defendants before granting leave.
Learned counsel for the respondent.
on the other hand drew our attention to the afore mentioned decision of the Madras High Court in T.M. Shanmugham and Others vs The Periyar Self Respect Propaganda Institution and Others, which has been relied upon in the impugned judgment.
In that case a learned Judge of the said High Court held that leave granted to the plaintiffs to institute a suit under section 92 of the Code without notice to the defendants is void in law and the logical consequence will be that the institution and the numbering of the suit cannot be validly sustained in law and, therefore, the suit was liable to be dismissed on that technical ground.
However, this will not stand in the way of the plaintiffs, if so desired, to institute fresh proceedings in accordance with law under section 92 of the Code.
In the case of Gurdwara Prabandhak Committee.
Delhi Cantonment and Others vs Amarjit Singh Sabharwal and Others.
a learned Single Judge of the Delhi High Court has taken the view that an order of District Judge granting or refusing leave must be a reasoned order.
The public trust concerned has right to be heard before the grant or refusal of leave.
It was held by him that if the trust is not given an opportunity of being heard, it would be a material irregularity.
To pass a non speaking order in a judicial proceeding is also a material irregularity and revision would lie against such an irregularity.
The grant ing or refusing leave is a judicial order subject to revi sion or appeal and it must be supported by reasons.
Before such an order is passed both sides must have had an opportu nity of being heard.
As far as the decisions of this Court which have been pointed out to us are concerned, the question as to whether before granting leave to institute a suit under section 92 of the Code, the Court is required to give an opportunity of being heard to the proposed defendants did not arise for determination at all in those cases.
As far as the High Courts are concerned, they have taken different views on this question.
The legislative history of section 92 of the Code indicates that one of the objects which led to the enactment of the said section was to enable two or more persons interested in any trust created for a public purpose of a charitable or religious nature should be enabled to file a suit for the reliefs set out in the said section without having to join all the beneficiaries since it would be highly inconvenient and impractic 275 able for all the beneficiaries to join in the suit; hence any two or more of them were given the right to institute a suit for the reliefs mentioned in the said section 92 of the Code.
However, it was considered desirable to prevent a public trust from being harassed or put to legal expenses by reckless or frivolous suits being brought against the trus tees and hence, a provision was made for leave of the court having to be obtained before the suit is instituted.
A plain reading of section 92 of the Code indicates that leave of the court is a pre condition or a condition prece dent for the institution of a suit against a public trust for the reliefs set out in the said section: unless all the beneficiaries join in instituting the suit.
if such a suit is instituted without leave, it would not be maintainable at all.
Having in mind, the objectives underlying section 92 and the language thereof.
it appears to us that, as a rule caution, the court should normally.
unless it is impractica ble or inconvenient to do so, give a notice to the proposed defendants before granting leave under section 92 to insti tute a suit.
The defendants could bring to the notice of the court for instance that the allegations made in the plaint are frivolous or reckless.
Apart from this.
they could, in a given case, point out that the persons who are applying for leave under section 92 are doing so merely with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons.
The desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under section 92 can be granted as that would lead to unnecessary delay and, in a given case.
cause considerable loss to the public trust.
Such a construction of the provisions of section 92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even though the circum stances might warrant such relief being granted.
Keeping in mind these considerations, in our opinion.
although, as a rule of caution, court should normally give notice to the defendants before granting leave under the said section to institute a suit.
the court ' is not bound to do so.
If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non maintainable.
The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law.
We may mention that although clause (ffa) of a section 104(1) of the Code provides that an appeal shall lie against the refusal of grant of 276 leave, that cannot lead to the conclusion that it is obliga tory on the part of the court to give notice to the proposed defendants before granting leave because an appeal lies only against the refusal of leave and not against the grant of leave.
Before refusing leave the proposed plaintiffs are bound to be heard and it is the plaintiffs and not the defendants who could be prejudiced by refusal to grant such leave.
In the result, the appeals are allowed as aforestated.
The impugned judgment of the High Court is set aside.
The Trial Court is directed to dispose of the application for revocation of leave on merits and in accordance with law.
On the facts and circumstances of the case, there will be no order as to cost incurred so far.
R.S. section Appeals allowed.
|
The appellants instituted a representative suit in the court of the learned Subordinate Judge against the respond ents inter alia praying for framing a scheme for a public charitable trust.
On the same day, an application was made in the court praying for leave to institute the suit, as required under section 92 of the Civil Procedure Cede.
The Court granted leave without issuing any notice to the re spondents.
Thereupon, the respondents filed an interim application before the Court for revoking the leave granted inter alia on the ground that the respondents had not been given any opportunity to be heard before leave was granted.
The learned Subordinate Judge dismissed the said application on the ground that the grant of leave was an administrative act of the Court and no notice to the respondents was re quired before the grant of such leave.
The respondents preferred a Civil Revision Petition in the High Court which was allowed.
The learned Single Judge took the view that as the leave had been granted without any notice to the respondents, it was void and liable to be set aside.
Before this Court it was contended on behalf of the appellants that if tile court were required to give an opportunity to the defendants to be heard before granting leave under section 92, the grant of leave would entail a great deal of delay and might defeat the ends of justice where some urgent relief was required.
It was also urged that at the time when the court considered whether to grant leave, it was only the averments in the plaint which had to be examined and hence, the presence of the defendant was not necessary.
It was further submitted that if a defendant had a grievance against the grant of leave, he could always make an application to revoke the same and no prejudice would be caused to the defendant by the grant of leave.
267 On behalf of the respondents it was submitted that the court could not decide whether leave should be granted or not without giving an opportunity to the defendants who could point out the reasons why leave should not be granted.
Allowing the appeals and directing the Trial Court to dispose of the application for revocation of leave on merits and in accordance with law, this Court, HELD: (1) A plain reading of section 92 of the Civil Procedure Code indicates that leaves of the court is a pre condition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section, unless all the beneficiaries join in institut ing the suit; if such a suit is instituted without leave it would not be maintainable at all.
[275B C] (2) Having in mind the objectives underlying section 92 and the language thereof, it appears that, as a rule of caution, the court should normally, unless it is impractica ble or inconvenient to do so, give a notice to the proposed defendants before granting leave under section 92 to insti tute a suit.
The desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under section 92 can be granted as that would lead to unnecessary delay, and in a given case, could cause considerable loss to the public trust.
[275C E] (3) If a suit is instituted on the basis of such leave granted without notice to the defendants, the suit would not thereby be rendered bad in law or non maintainable.
The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law.
[275G] T.N. Shanmugam and Others vs The Periyar Self Respect Propaganda Institution and Others, [1984] II MLJ 440; ; Swami Parmatmanand Saraswati & Anr.
vs Ramji Tripathi & Anr., ; , 795; Charan Singh & Anr.
vs Darshan Singh and Ors.
, ; ; Mahant Pragdasji Guru Bhagwandasji vs Patel Ishwarlal Bhai Narsibhai and Others, ; ; Prithipal Singh vs Magh Singh and Others, AIR 1982 Punjab & Haryana 137; Lachhman Dass Udasi (deceased by L. RS.) and Others vs Ranjit Singh and Others.
AIR 1987 Punjab and Haryana 108; I. V. Mathew vs K.V. 268 Thomas.
AIR 1983 Kerala 5; Mayer Simon Perur vs Advocate General of Kerala, ; Ambrish Kumar Singh vs Raja Abhushan Bran Bramhshan and Others, AIR 1989 All 194 and Gurdwara Prabandhak Committee, Delhi Cantonment and Others vs Amarjit Singh Sabharwal and Others, , referred to.
(4) Although clause (ffa) of section 104(1) of the Code of Civil Procedure provides that an appeal shall lie against the refusal of grant of leave, that cannot lead to the conclusion that it is obligatory on the part of the court to give notice to the proposed defendants before granting leave because an appeal lies only against the refusal and not the grant of leave.
[275H; 276A]
|
ivil Appeal No. 1731 of 1986.
From the Judgment and Order dated 26.4.
1985 of the Madhya Pradesh High Court in Misc.
Petition No. 1729 of 1984.
Avadh Behari and S.K. Gambhir for the Appellant.
330 Rameshwar Nath, V.S. Dabir, Rajinder Narain for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
S.P. Dubey, employed with the Madhya Pradesh State Road Transport Corporation, was retired from service on his attaining the age of 58 years.
He claims that the age of superannuation was 60 years and as such his retirement at 58 was illegal.
We may state the necessary facts.
Dubey joined service as a junior clerk with the Central Provinces Transport Service Limited (hereinafter called the company) in the year 1947.
The Board of Directors of the company by a resolution dated July 30, 1954 fixed the age of superannuation of all its employees except the drivers as 60 years.
The company was purchased and taken Over by the State of Madhya Pradesh by a notification dated August 31, 1955.
The relevant part of the said notification is as under: "The undertaking will as from the 31st August, 1955 be entitled 'The Central Provinces Transport Services (under Government Ownership)".
So far as the public is concerned there will be no change or interruption in the course of business and the continuity of operation will not be dis turbed and the existing staff will not be adversely affected with regard to terms and conditions of their services.
The statutory instrument to be made in due course will provide, among other things that all the rights and liabilities of the Central Provinces Transport Services Ltd. will become the rights and liabilities of the Central Provinces Trans port Services (Under Government ownership) and from a legal point of view the staff, customers and contractors can look to the Central Provinces Transport Services (Under Govern ment ownership) to discharge all the obligations and exer cise all the rights that at present rest with the Central Provinces Transport Service Ltd., Rules for the conduct of business of the above constituted Board of Management are being published separately.
" It is thus obvious that the Government continued to maintain the Central Provinces Transport Services as a separate entity.
The conditions of service, of the staff of the taken over company, were specifically protected.
331 The State of Madhya Pradesh was recoganised under the .
The Central Government, by a notification dated February 28, 1961, extended the provi sions of Road Transport Corporation Act, 1958 (hereinafter called 'the Act ') to the State of Madhya Pradesh with effect from April 1, 1961.
Thereafter the Madhya Pradesh Government acting under Section 3 of the Act established the Madhya Pradesh State Road Transport Corporation (hereinafter called Corporation) with effect from May 21, 1962.
The Madhya Pradesh Government issued two memorandums on May 4, 1962.
By one memorandum the services of the concerned employees including Dubey were transferred to the Corporation and by the second it was clarified that the said transfer was subject to the conditions that their service would be treat ed as uninterrupted and their pay scales and conditions of service would not be affected.
On the same day and Board of Directors of the Corporation passed a resolution to the following effect: "Resolved that the services of the employees employed under M.B.R. and C.P.T.S. on 31.5.1962 are transferred to the Corporation temporarily until further orders from 1.6.1962 on the following conditions: 1.
The pay scale and conditions of service are not affected by the transfer.
The transfer will not be considered as interruption of services.
In case of employees coming under the category of workman as defined under the , the Corporation in the event of retrenchment will pay compensation on the basis that the services had been contin ued and had not affected by transfer.
" The State Government issued directions dated October 29, 1963 to the Corporation under Section 34 of the Act.
Rele vant part of the directions is as under: "The members of the staff of the Madhya Bharat Roadways and Central Provinces Transport Services, who have opted to serve under the Corporation in pursuance of the notices issued to them by the Commerce and Industry Department or any authority of the Madhya Bharat Road 332 ways and Central Provinces Transport Service shall be em ployed by the Corporation subject to such regulations as may be made by it under Section 45(2)(c) of the 'Road Transport Corporation Act, 1950 '(Central Act LXIV of 1950), and subject to 'such assurance as may have been given to them by the State Government.
" The Corporation framed regulations called The Madhya Pradesh State Road Transport Corporation Employees Service Regulations, 1964.
" Regulation 59 which provided the age of superannuation was as under: "Employees of/he State Transport are liable to compulsory retirement on the date of their completion of fifty eight years of age unless specifically permitted by the Corpora tion to continue in service for a specified period thereaf ter, but he must not be retained after the age of 60 years, without the sanction of State Government.
" The corporation issued a notice dated May 25, 1983 to Dubey informing him that he was due to retire from service on June 30, 1984 on attaining the age of 58 years.
He chal lenged the said notice by way of a writ petition under Article 226/227 of the Constitution of India before the Madhya Pradesh High Court at Jabalpur, The High Court by its judgment dated April 26, 1985 dismissed the writ petition.
The present appeal by way of special leave petition is against the judgment of the High Court.
The High Court, following its earlier Division Bench judgment, came to the conclusion that on August 31, 1955 when the appellant became State Government employee his age of superannuation came to be governed by the statutory rules under Article 309 of the Constitution of India operating in respect of the Government employees of the State of Madhya Pradesh and the age of retirement of the State servants under the said rules being 58 years the appellant was right ly retired.
The appellant was in service of the company from 1947 to August 30, 1955.
Admittedly, the age of superannuation of the company employees was 60 years.
The Government of Madhya Pradesh took over the company with effect from August 31, 1955 by a notification of the same date.
The notification specifically stated that the existing staff of the company would not be adversely affected with regard to 333 their conditions of service.
It is no doubt correct that on August 31, 1955 rules were operating in respect of the State Government employees according to which the age of superan nuation was 58 years but the persons who were service with the company were taken into Government serving with a spe cific assurance that their conditions of service were. not to be adversely affected.
When the.
State Government takes over a private company and gives an assurance of the types it is but fair that the State Government should honour the same.
Thus, the State Service rules which fixed the age of superannuation at 58 years could not be made applicable to the appellant and other employees of the taken over company.
We, therefore, do not agree with the reasoning of the High Court.
It was then urged that on the transfer of appellant 's service to the Corporation he was governed by the Regula tions framed by the Corporation under the Act and Regulation 59 provided 58 years as the age of superannuation.
We do not agree with the contention.
The State Government issued directions under Section 34 of the Act which we have repro duced above.
The said directions are binding on the corpora tion.
This Court in The General Manager, Mysore State Road Transport Corporation vs Devraj ors and another, interpreting Section 34 of the Act held as under: "Directions given by the State Government are binding on the corporation and it cannot depart from any general instruc tions issued under sub section (1) of Section 34 except with the previous permission of the State Government.
Such in structions have the force of law .
Therefore breach of the directions given by State Government in the matter of disciplinary action against the respondents was a breach of the statutory duty and made the action of the corporation amenable to the jurisdiction of the High Court under Article 226 of the Constitution".
The State Government and also the Corporation had given assurance to the appellant and other employees who were transferred to the Corporation that their conditions of service would not be adversely affected.
The said assurance was incorporated in the directions issued under the Act.
The Corporation cannot frame regulations contrary to the direc tions issued by the State Government under Section 34 of the Act.
The age of superannution which the appellant was enjoy ing under the State Government could not be altered to his disadvantage by the 334 Corporation.
We are, therefore, of the view that Regulation 59 flamed by the Corporation was not applicable to the appellant.
He was entitled to continue in service upto the age of 60 years.
We, therefore, allow the appeal with costs and set aside the judgment of the High Court.
The appellant has already attained the age of 60 years.
He is only entitled to two years emoluments.
The respondents are directed to pay the same to the appellant within three months from today.
We quantify the costs as Rs.5,000.
P.S.S. Appeal allowed.
|
The age of superannuation for the employees of the private transport company in which the appellant was ini tially employed was 60 years.
When the said company was taken over by the State on August 31, 1955, the notification specifically provided that the existing staff would not be adversely affected with regard to terms and conditions of service.
Again, when the services 01 the staff of the taken over company were transferred to the respondent Corpo ration established under section 3 of the Road Transport Corpora tion Act, 1950, the memorandum dated May 4, 1962 recited the same assurance.
A resolution passed by the Board of Direc tors of the Corporation on the same day also reiterated the said assurance.
Subsequently, when the State Government issued directions on October 29, 1963 to the Corporation under section 34 of the Act the said assurance was embodied therein too.
However, Regulation 59 of the M.P. State Road Transport Corporation Employees Service Regulations, 1964 framed by the Corporation under section 45(2)(c) of the Act provided that the employees of the Corporation were liable to compulsory retirement on the date of their completion of 58 years of age unless specifically permitted to continue.
When the appellant was sought to be retired from service in terms of Regulation 59 of the said Regulations on attain ing the age of 58 years with effect from June 30, 1984 by a notice dated May 25, 1983, he challenged it by a petition under Article 226/227 of the Constitution.
It was dismissed by the High Court on the view that on August 31, 1955 when the appellant became State Government employee his age of superannuation came to be governed by the statutory rules under Article 309 of the Constitution and the age of retire ment of the State servants under the said rules being 58 years the appellant was rightly retired.
329 Allowing the appeal, the Court, HELD: 1.
The appellant was entitled to continue in service upto the age of 60 years.
2.1 When the State Government takes over a private company and gives an assurance that conditions of service of the existing staff would not he adversely affected, it is but fair that the State Government should honour the same.
2.2 In the instant case, the appellant was in service of the company from 1947 to August 30, 1955 in which the age of superannuation of the employees was 60 years.
The company was taken over by the State Government with effect from August 31, 1955 by a notification of the same date which specifically stated that the existing staff of the company would not he adversely affected with regard to their condi tions of service.
The State Service Rules which fixed the age of superannuation at 58 years could not thus he made applicable to the appellant and other employees of the taken over company.
Furthermore, the said assurance was also incorporated in the directions issued by the State Government to the Corporation under section 34 of the Act.
The Corporation could not frame regulations contrary to the said directions and the age of superannuation which the appellant was enjoying under the State Government could not he altered to his disadvantage by the Corporation.
Regulation 59 framed by the Corporation was, therefore, not applicable to the appellant.
The General Manager, Mysore State Road Transport Corpo ration vs Devraj Ors and Anr., , referred to.
Since the appellant had already attained the age of 60 years, he was only entitled to two years emoluments.
The respondents are directed to pay the same to him within three months.
[334B]
|
ontempt Petition No. 71 of 1990.
AND Interlocutory Application No. 1 of 1990.
IN Writ Petition (Civil) No. 1 1222 of 1983.
(Under Article 32 of the Constitution of India).
Shanti Bhushan, Bashant Bhushan, Bohla Prasad Singh for the Petitioner.
Kapil Sibal, Additional Solicitor General, Ashok H. Desai, Solicitor General, Tapas Roy, Ratin Das and D.K. Sinha for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
Seth Mannalal Surana Memorial Trust is the owner of a building situate at 7/ID, Lindsay Street, Calcut ta, one of the busiest streets in Calcutta where the New Market is situated.
The petitioner is the lessee of the said building from the said Trust.
On February 25, 1958, a por tion of the ground floor premises in the said building admeasuring 4198 Sq.
(referred to hereinafter as "the said premises") was requisitioned by the Government of West Bengal under the West Bengal Premises Requisition and Con trol (Temporary Provisions) Act, 1947, (hereinafter referred to as "the West Bengal Act").
The purpose for which the said premises were requisitioned was establishing the main show room of West Bengal Handicraft Development Corporation Limited, a West Bengal Government Undertaking.
The said show room is called "Manjusha" and has become a landmark in Calcutta.
In H.D. Vora vs State of Maharashtra and Others, ; this Court held that the provisions for, 248 requisition could be resorted to only where premises were required for a temporary purpose but not where they were required for a permanent purpose.
If premises were required for a permanent purpose, they have to be acquired in accord ance with law.
Following upon this decision, the petitioner filed the aforesaid Writ Petition No. 1 1222 of 1983 in this Court praying for a mandatory order directing that the premises should be derequisitioned and handed over to the petitioner.
Certain interim applications were made in this Court and orders were passed thereon to which it is not necessary to refer in this Judgment.
By an order dated January 16, 1990, certain directions were given to respondent No. 4 in the writ petition.
The relevant portion of the said order runs as follows: "In view of the earlier orders, we direct respondent No. 4 to hand over the possession of the premises in question to the petitioner within nine weeks from today subject to their obtaining any order from the Calcutta High Court in the appeal pending in that Court against the decision of a learned Single Judge in W.P. No. 2063 of 1987 or acquiring any independent right to retain possession of the suit premises within that period.
It is contended by Shri Shanti Bhushan, learned coun sel for the petitioner that as the respondents have not succeeded in obtaining any order from the Calcutta High Court in the said appeal or in acquiring any independent right to retain possession of the said premises within the period of nine weeks from January 16, 1990, as set out in the said order, they were bound to hand over the possession of the said premises to the petitioner and have committed contempt as they have deliberately failed to do so.
We find that it is not possible to accept the submis sion set out hereinabove.
On February 21, 1990, the Govern ment of West Bengal issued a notification under section 4 of the Land Acquisition Act as applicable to the State of West 'Bengal, declaring its intention to acquire the said prem ises.
On February 27, 1990, the said declaration was duly published.
By the beginning of March 1990 the declaration under section 6 of the Land Acquisition Act in respect of the said premises was duly made and published and on 1st of March.
1990 the Government of West Bengal authorised the First Lanisition Collector to take possession of the said premises under section 17(1) of the Land Acquisition Act.
Public notices were given on 9th March, 249 1990.
A few days later, the trustees of the said trust which owned the said building filed a writ petition in the Calcut ta High Court challenging the validity of the acquisition proceedings in respect of the said premises which had been initiated consequent upon the amendment of the Land Acquisi tion Act as applicable to the State of West Bengal and on 20th March, 1990, the Calcutta High Court directed the status quo to be maintained regarding possession.
It is clear that unless the said order dated March 20, 1990, is vacated, it is not possible for the respondents to proceed with the acquisition and acquire title to the prem ises.
The contention of the learned counsel for the peti tioner is that the acquisition is patently bad in law as it is not open to the Government to acquire the said premises on the ground floor of the said building without acquiring the corresponding area on the upper floors.
It was submitted by him that such acquisition would be clearly bad in law in spite of the amendment carried out to the provisions of Land Acquisition Act as applicable to the State of West Bengal by the insertion of Section 49 A therein by Land Acquisition (West Bengal Amendment) Act, 1986, which came into force on February 14, 1990, after obtaining the consent of the Presi dent of India.
Section 49A permits acquisition of a part of a house.
In our view, the question whether the acquisition is valid or not is pending for decision in the Calcutta High Court in the said writ petition filed by the said trust as owner of the building challenging the validity of the said amendment.
In our opinion, before a party can be committed for contempt, there must be a wilful or deliberate disobedience of the orders of the Court.
In the present case, we do not find that any such wilful or deliberate or reckless disobe dience of our order dated January.
16, 1990, has been com mitted by the respondent to the contempt petition.
Hence, the contempt petition is dismissed.
There will be no order as to costs.
We hope that the Calcutta High Court will be able to dispose of the said writ petition challenging the validity of the said amendment as early as possible.
Interlocutory Application No. 1 of 1990 in writ petition No. 11222 of 1983 is not pressed and is allowed to be with drawn with liberty to renew the same if any occasion arises.
Although we are of the view that the respondent has not commit 250 ted contempt, we do realise that in case the petitioner succeeds in the writ petition, the respondent would have remained in possession of the said premises for a long time after they should have handed over the possession of the same to the petitioner.
We find that the respondent has already been directed to pay compensation for the use of the said premises at the rate of Rs. 15,000 per month by an order of this Court passed over two years earlier.
We direct that the respondent shall deposit, in addition, an amount of Rs. 10,000 per month commencing from 1st October, 1990, in the Court, the first of such deposits to be made on or before 20th October, 1990, and deposits for each succeeding month to be made by 15th day of each succeeding month.
The amounts deposited shall be invested by the Registrar General at suitable intervals in a nationalised bank in fixed depos it after consulting the parties.
|
By its order dated January 16, 1990 in the writ petition, the Court had directed respondent No. 4 to band over possession of the premises requisitioned under the West Bengal Premises Requisition and Control (Temporary Provi sions) Act, 1947, within nine weeks subject to their obtain ing any order from the High Court or acquiring any independ ent right within that period to retain possession.
In the meantime, the Land Acquisition (West, Bengal Amendment) Act, 1986, which inserted section 49A in the Land Acquisition Act, 1894 as applicable to the State, came into force on February 14, 1990 permitting acqusition of a part of a house.
A week thereafter the State Government initiated acquisition process in respect of the said premises.
Notifi cations under sections 4 and 6 of the Land Acquisition Act were issued, and the Land Acquisition Collector authorised to take possession under section 17(1) of the Act.
However, on March 20, 1990 in a writ challenging the validity of the acquisi tion proceedings the High Court directed the status quo to be maintained regarding possession.
In this contempt petition, the petitioner alleged that the respondent had deliberately failed to hand over possession in terms of the order dated January 16, 1990.
The acquisition was also assailed as being patently bad in law.
HELD: 1.
Before a party can be committed for con tempt, then must be a wilful or deliberate disobedience of the orders of the Court In the instant case, no such wilful or deliberate or reckless disobedient, of the order dated January 16, 1990 has been committed by the respondent to the contempt petition.
[249F] 2.
The question whether the acquisition is valid or not is pending 247 for decision in the High Court.
In case the petitioner succeeds the respondent would have remained in possession of the said premises for a long time after they should have handed over the possession.
They are, therefore, directed to deposit an amount of Rs. I0,000 per month commencing from 1st October, 1990 in the Court in addition to Rs.15,000 per month they are already paying under the earlier directions.
[250A C]
|
been clearly mentioned that they shall be deemed to have been made ap plicable from 1st April, 1974.
The Board had set up 280 their case in the reply to the writ petition on the basis of these Regulations and it was the duty of the Division Bench of the High Court to have looked into the reply filed by the Board and to decide the effect of such statutory regulations in the present case.
[291D E] (5) The High Court committed a serious error in ignoring clause IX of the First Settlement dated 22.2.1972 as well as the Regulations made by the Board in 1978.
[291H] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2917 of 1985.
WITH Civil Appeal Nos.
2900 2901, 2903 2916 of 1985 and 2918 21 of 1985.
From the Judgment and Order dated 21.5.1984 (Judgment pronounced on 2.7. 1984) of the Rajasthan High Court in D.B. Civil Special Appeal No. 172 of 1984.
Dr. L.M. Singhvi, Sushil Kumar Jain, Shahid Rizvi, Dr. D.K. Singh, Pradeep Agarwal, Pratibha Jain and Sudhanshu Atreya for the Appellants.
Rajinder Singhvi, M.R. Singhvi and Surya Kant for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
All these civil appeals by special leave are directed against the Judgments of the Rajasthan High Court dated May 11, 1984, May 21, 1984 and the reasons whereof pronounced on 2.7.
Controversy raised in all these cases is whether the respondents are entitled to pay scale No. 2 or pay scale No. 3.
The Government of India vide its Resolution dated 20th May, 1966 constituted a General Wage Board for electricity undertakings for evolving wage structure, specialisation of nomenclature and job description.
The recommendations of the said Wage Board were accepted by the Government of India in July, 1970.
The Prantiya Vidyut Mandal Mazdoor Federation (in short the Federation) recognised trade union of the employees of the Rajasthan State Electricity Board presented their demands before the Labour Department of the 281 Government of Rajasthan for implementation of the recommen dations of the Wage Board.
While the said industrial dispute between the management of the Board and its employees was pending before the Conciliation Officer, a settlement was arrived at on February 22.
By this agreement the parties agreed that the existing scale of pay of various categories of posts would be revised w.e.f.
1st April, 1969.
The schedule of the said agreement set out various catego ries of posts under different pay scales.
At St. No. 21 Meter Reader/Meter Checker was mentioned under scale No. 3 i.e. Rs. 126 8 150 10 250.
In pursuance to the above settle ment the Board issued a notification dated 22nd March, 1972 revising the pay scales of its employees w.e.f. 1st April, 1969.
Subsequent to this agreement the Board entered into another agreement with the Federation on December 2, 1972 (hereinafter referred to as the Second Settlement).
In the second settlement.
it was mentioned that this was done in view of some anomalies and difficulties which had cropped up in the course of implementation of previous agreements dated January 26, 1970; April 27, 1971; and July 28, 1972.
It was also mentioned in the said settlement that it was considered desirable to remove the anomalies and clarify certain points by mutual negotiations.
The settlement was made effective w.e.f.
1st April, 1968.
In the second settlement it was agreed to have two categories for Meter Readers i.e. Meter Reader I/Meter Checker I and Meter Reader II/Meter Checker II.
The relevant Clause in this regard reads as under: "II.
Under pay scale No. 3 technical read 21" Meter Reader I/Meter Checker I and under pay scale No. 2 technical, insert "7 Meter Reader /I/Meter Checker II" and insert the following Note below pay scale No. 2: "Meter Reader II/Meter Checker II appointed/fixed, pro moted/adjusted on or before 31.3.
1968 will be fixed in pay scale No. 3 instead of pay scale No.2.
The Board in accordance with the second settlement issued another Notification dated 6.12.
1972 whereby the previous Notification dated March 22, 1972 was amended.
Some of the employees, namely, Jagdish Prasad, Brij Mohan, Madho Singh, Prakash Chander, section Samuel, Brij Lal and Chander Bhan filed writ petitions in the High Court of Judicature for Rajasthan at Jodhpur and challenged the Notification dated 6th December, 1972.
It may be noted that all these employees were appointees before 6.12.
Learned Single Judge of the High Court by Judgment dated 21st March, 1979 allowed the write 282 petitions and quashed the Notification dated 6th December, 1972 mainly on the ground that the second settlement could not have been made as no conciliation proceedings were pending before such settlement and that the date 1.4.1968 mentioned in the notification for making the settlement effective was arbitrary and without basis.
The Board filed on appeal before the Division Bench which by their judgment dated 19th December, 1979 dismissed the same and upheld the judgment of the Learned Single Judge.
The Board implemented the judgment of the High Court in respect of Jagdish Prasad & Ors.
and issued orders to provide scale No. 3 to all Meter Readers appointed upto 6.12.
After 6th December, 1972 some more persons were appoint ed on the post of Meter Reader/Meter Checker Grade II i.e. in the pay scale of Rs.80 5 110 6 152 7 194 between the period 1972 1979.
Some of the employees again filed writ petitions in the High Court.
The High Court vide its judg ment dated 29th March, 1982 allowed the writ petitions on the ground that the second settlement had already been quashed by the earlier judgment given in Brij Lal vs Rajas than State Electricity Board, [1979] WEN UC 221.
The High Court inter alia held and observed as under: "Once the second settlement dated December 6, 1972, no longer exists in view of non compliance with Section 19(2) of the aforesaid Act and in view of the decision of this Court in Brijlal 's case (supra), the only settlement which can be said to be in existence is the first settlement dated February 22, 1972.
The aforesaid settlement only provides one grade (scale No. 3 item No. 21) for Meter Reader/ Check er, and, therefore, the petitioner is entitled to be fixed in that grade.
Merely because the post of Meter Reader II/Checker II was advertised with pay scale No. 2 and the petitioner applied and was selected, it cannot be said that the petitioner is estopped now from challenging his fixation in the aforesaid pay scale.
There can be no estoppel against statute.
The petitioner was not knowing and could not know that it is the first settlement dated February 22, 1972 which was in force and the settlement dated December 6, 1972 was invalid, and, therefore, no case of estoppel is made out against the petitioner.
Once this Court had quashed the second settlement dated December 6, 1972 and held that the first settlement 283 dated 22,2, 1972 Was in force, it Was necessary for the Board to have fixed the Meter Reader/Meter Checker in scale No. 3 item No. 21 of Schedule 'A ' to the first settlement.
The Board in spite of demand made to it by the petitioner in this behalf refused to do it".
A bunch of 35 identical writ petitions directing the Board to fix the petitioners in the pay scale No. 3 (Rs. 126 250) as revised from time to time were allowed by learned Single Judge of the High Court by a common order dated November 15, 1983.
The Board filed special appeals before the Division Bench.
The Division Bench dismissed the special appeals by orders dated 11.5.1984, 21.5.1984 and observed that the reasons will be recorded later on.
The Division Bench thereafter pronounced the reasons by order dated 2.7.
The Board has now filed these appeals restricted to such employees who were appointed as Meter Readers/Checkers grade II after 1.4.1974.
It may also be mentioned at this stage that under Clause IX of the first settlement dated 22nd February, 1972 it was mentioned as under: "(IX) This agreement shall remain in force upto 31st March, 1974 and the Federation agrees not to raise any demand in respect of any of the matters covered by this agreement during the period of the operation of the agreement".
It may also be mentioned that in exercise of the powers conferred by Section 79, sub sec.
(c) and (k) of the Elec tricity (Supply) Act, 1948, the Board after obtaining con currence of the Government of Rajasthan and directives issued under Sec.
70(A) of the said Act and taking into consideration the suggestions made by the representatives of the employees, made regulations which are called Rajasthan State Electricity Board Employees (emoluments) Regulations, 1978.
These regulations were made applicable retrospectively from 1st April, 1974.
Under these regulations post of Meter Reader II/Meter Checker I1 was mentioned in scale No. 2 as revised in the pay sclae of Rs.260 8 324 10 464.
Dr. L.M. Singhvi, St. Advocate appearing on behalf of the Board contended that irrespective of the earlier judg ment given by the High Court in Brij Lal vs R.S.E.B. (supra) quashing the second notification dated 6.12.1972 the present appeals having been filed against the Meter Readers appoint ed on or after 1.4.1974, they are not entitled to scale 284 No. 3 as the first settlement dated 22.2.
1972 was to remain in force upto 31st March, 1974.
It was also argued that in the appointment orders of the respondent employees appointed after 1.4.1974, it was clearly mentioned that they were appointed as Meter Reader/Meter Checker II in pay scale No. 2 i.e. Rs.80 194.
Dr. Singhvi further argued that the Board had also made regulations which had statutory force and were made applica ble retrospectively from 1st April, 1974.
Under these regu lations also the post of Meter Reader II/Meter Checker II was mentioned in Scale No. 2.
It was thus contended that considering the matter from any angle, the respondents were not entitled to scale No. 3 but were only entitled to scale No. 2 as revised from time to time.
It was also pointed out by Dr. Singhvi that without prejudice to the above submis sions so far as respondents Laxman Lal, Sita Ram and Madhay Lal are concerned, they were otherwise also not entitled to get any relief in as much as they were appointed Meter Readers II after the notification of the Regulations of 1978.
The Regulations were notified vide notification No. RSEB.
F. RRBS/D.41 dated 4th May, 1978 whereas Laxman Lal, Sita Ram and Madhay Lal were appointed respectively on 19th August, 1978.8th October, 1979 and 9th April, 1979.
Learned counsel for the respondent employees on the other hand submitted that in the settlement dated February 22, 1972 no distinction was made of Meter Reader Gr.
I or II and the post of Meter Reader/ Meter Checker was placed in pay scale No. 3.
It was submitted that validity of second settlement and the notification dated December, 6, 1972 was challenged in Brij Lal 's case and a Division Bench of the High Court had quashed the aforesaid settlement and the said judgment was not challenged by the Board before this Hon 'ble Court and the same had become final.
Thereafter an arbitra tion award was given in 1979 between the Board and the Federation under which two categories of Meter Readers/Meter Checkers were again made.
According to this award Meter Reader/Meter Checker II was placed in the pay scale No. 2 of Rs.80 194 and Meter Reader/Meter Checker I was placed in the pay scale of No. 3 of Rs. 126 250.
It was thus submitted that all the Meter Readers appointed upto 1979 were entitled to scale No. 3.
It was further submitted that the first settlement dated February 22, 1972 and the notification issued thereafter on March 22, 1972 continued to operate and there was only one pay scale of Rs. 126 250 for all Meter Readers and there being no classification of Gr.
I or II, the pay scale of Rs. 126 250 remained in force, till the arbitration award was given on June 15, 1979.
It was submit ted that all the respondents having been 285 appointed prior to June 15, 1979, they were entitled to pay scale No. 3.
As regards the stand taken by the Board that it had framed Regulations regarding the fixation of pay scales it was contended that no such plea was taken in reply to the writ petitions filed by the employees.
It was pointed out that the contention with regard to the first settlement having come to an end on March 31, 1974 as well as the contention raised on the basis of regulations was rightly negatived by the Division Bench of the High Court in the following manner: "It was contended by the learned counsel for the appellants that the learned Single Judge did not take into considera tion the fact that first settlement came to an end on March 31, 1974 and was not in force after that date.
He submitted that the Board had powers under Sec.
79(c) and (k) of the to frame Regulations regard ing the fixation of pay scales.
Learned counsel for the appellants was asked to show from the writ petitions whether this point was taken in the writ petitions or not.
Learned counsel for the appellants candidly admitted that it was not raised in the writ petitions filed by the petitioners.
It was, then.
put to the learned counsel whether this point was argued before the learned Single Judge.
Mr. S.N. Deedwania submitted that in the absence of the affidavit of the coun sel who argued on behalf of the appellants before the learned Single Judge positive assertion to that effect cannot be made.
In the memo of appeal this ground, of course, has been taken but not in the manner in which it has been stated hereinabove.
As this point was not taken in the writ peti tions and it was not argued before the learned Single Judge, we do not consider it necessary to examine it.
We shall examine the validity of the order under appeal on the basis of the grounds that were argued on behalf of the petitioners before the learned Single Judge".
It was further contended that during the pendency of these appeals additional affidavit was filed on behalf of Laxman Lal respondent.
It was pointed out in the additional affidavit that Sh.
Udai Lal and Sh.
Shyam Lal were appointed as Meter Readers vide order dated 6.9.1974.
These persons filed writ petitions Nos.
1191/81 and 1181/81 respectively.
The aforesaid writ petitions were allowed by the High Court vide judgment dated 28.3.1982.
One Sh.
Prem Shankar who was appointed as Meter Reader vide order dated 16.5.
1974 also filed a writ petition 286 No. 120/81 in the High Court and it was also allowed by order dated 28th March, 1982.
The Board did not challenge the aforesaid orders and issued order on 23.8.1982 imple menting the judgment of the High Court.
The above examples were given in order to show that these persons were also appointed after 1.4.1974 and in their cases also relief was granted by the High Court and the Board never challenged the aforesaid judgments given in favour of Udai Lal, Shyam Lal and Prem Shankar.
It has also been submitted that the Board has also published a revised revenue manual on 1.9. 1986 in which vide para 124 duties of Meter Readers have been laid down.
It is contended that in the manual no dif ferent duties have been prescribed for Meter Reader II and Meter Reader I and thus in the discharge of duties there is no difference.
A supplementary affidavit has been filed by Shri R.C. Harit, Deputy Director, Rajasthan State Electricity Board.
It has been submitted in the supplementary affidavit as under: "That is so happened that after the aforesaid judgment dated 19th December, 1979 in the matter of R.S.E.B. vs Jagdish Prasad Brij Lal D.B. Appeal No. 179 of 1979 some other Meter Readers on the basis of this judgment filed various other writ petitions.
In these writ petitions the question above the applicability of Regulations or the question as to whether the Respondent can challenge his own appointment by which they were appointed to Meter Reader II post were not at all raised or decided by the High Court.
The High Court decided the said writ petitions only on the basis of the earlier judgment in the matter of R.S.E.B. vs Jagdish Prasad (Brij Lal).
The Appellant Board implemented the said order.
The respondent is trying to raise the said question which was neither been decided by the High Court and has been raised for the first time in this supplementary affidavit.
On account of lapse of time, the appellant is finding it difficult to give reply.
The Deponent has tried his best to locate the records but in such a short period he could not get the file of the case which was decided about eight years back as it appears to have been mixed up in the old record.
That the order passed in the matter of Shanti Lal was a Judgment inter parties and, therefore, simply because the Board did not challenge the said order, it does not mean that the respondent can also take advantage of the same and can raise the question of equal pay for equal work.
In this the 287 Appellants further state that all the persons except re spondent Shri Lehar Singh and Gharsi Lal (Geharial) in civil appeal in the present case were appointed after 7th Septem ber, 1974 and 16th May,1974 i.e. the date on which three persons whose matters were decided alongwith Shanti Lal 's case were appointed" We have thoroughly examined the record and have consid ered the arguments advanced b.y Learned counsel for the parties.
It may be noted that all the above appeals are in respect of such employees who were appointed after 1.4.1974.
In the appointment orders of all the respondents it was specifically mentioned that they were appointed as Meter Reader Gr.
II in the pay scale of Rs. 80 194 (subsequently revised to Rs. 260 464).
In Clause (ix) of the First Settle ment dated 22nd February, 1972 it was clearly mentioned that this agreement shall remain in force upto 31st March, 1974.
The stand taken by the Board all along was that this settle ment was subsequently amended by another agreement (Second Settlement) on December 2, 1972.
In this second Settlement certain anomalies and difficulties had cropped up in the course of implementation of earlier settlements and hence some clarifications were made by mutual negotiations.
The clarifications relevant for our purpose were that the First Settlement was made effective w.e.f.
1st April, 1968 instead of 1st April, 1969 and two categories were fixed for Meter Readers i.e. Meter Reader I/Meter Checker I and Meter Read er II/Meter Checker II.
Necessary amendments were made in the Schedules annexed to the Settlement according to which under pay scale No. 3 at Item No. 21 Meter Reader I/ Meter Checker I and under pay scale No. 2 at Item No. 7 Meter Reader II/Meter Checker II were inserted.
This Second Set tlement was subsequently notified by a Notification dated 6.12.
According to the Board this Second Settlement was merely a clarification settlement and not a new settle ment in as much as it sought to make clear the ambiguity which had cropped up in the First Settlement in the matter of fixing the grades and pay scales of the Meter Readers/Meter Checkers.
The Notification dated 6.12.1972 which related to the Second Settlement dated 2.12.1972 was challenged by some of the employees by filing writ petitions in the High Court and Learned Single Judge by Judgment dated 21st March, 1979 allowed the writ petitions and quashed the notification dated 6th December, 1972.
It may be noted that the Second Settlement was quashed on the ground that the Second Settlement could not have been made as no concilia tion proceedings were pending before such settlement and the date 1.4.1968 mentioned in the Notification was arbitrary and without any 288 basis.
An appeal filed by the Board against the aforesaid decision was dismissed by the Division Bench of the High Court on 19th December, 1979.
This litigation was commenced by such employees who were appointed prior to 6.12.1972.
Subsequently employees appointed between the period 1972 1979 filed writ petitions in the High Court.
The stand taken by these employees was that the Notification dated 6.12.
1972 had already been quashed by the High Court and as such they were to be governed by the First Settlement dated February 22, 1972 in which there was only one category Of Meter Reader/Meter Checker to whom pay scale No. 3 had been given and as such they were also entitled to pay scale No. 3.
The High Court allowed the writ petitions and granted pay scale No. 3 to all the 35 petitioners.
the Board has now come before this Court against such employees who were appointed after 1.4.1974.
The contention of the Board is that even if for arguments ' sake the earlier decision given by the High Court may be considered as final, that was in respect of employees who were appointed before 6th December, 1972.
As regards the present employees it has been submitted that no benefit can be granted in their case as the First Settlement itself was to remain in force upto 31st March, 1974 and in any case in the appointment orders of the re spondents it was clearly mentioned that they were appointed as Meter Reader/Meter Checker Gr.
II in the pay scale No. 2.
It has also been urged before us that the Board had made Rajasthan State Electricity Employees (emoluments) Regula tions 1978 published on 4.5.
1978 but the same were deemed to have been made applicable from 1st April, 1974.
Under these regulations post of Meter Reader II/Meter Checker II in pay scale No. 2 and Meter Reader I/Meter Checker I have been placed in pay scale No. 3.
Learned counsel for the employees respondents contended that though according to Clause IX of the First Settlement dated 22.2.
1972, it was mentioned that the same will remain in force till 31st March, 1974 yet the same would remain in operation until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement as provided under Sub section
(2) of Section 19 of the (hereinafter referred to as the Act).
It has been submitted that no such notice was given by the Board and the Second Settlement dated 2.12.
1972 and Notification dated 6.12.
1972 had already been quashed by the High Court in Brij Lal 's case (supra) and the same having become final, the first settle ment Would govern the parties.
Reliance in support of the above contention is placed on The Life Insurance Corporation of India vs D.J. 289 Bahadur and Ors., [1980] Lab.
I.C. Vol.
2 1218.
Our attention was drawn to para 33 of the above case which reads as under: "The core question that first fails for consideration is as to whether the settlements of 1974 are still in force.
There are three stages or phases with different legal effects in the life of an award or settlement.
There is a specific period contractually or statutorily fixed as the period of operation.
Thereafter, the award or settlement does not become honest but continues to be binding.
This is the second chapter of legal efficacy but qualitatively different as we will presently show.
Then comes the last phase.
If notice of intention to terminate is given under Section 19(2) or 19(6) then the third stage opens where the award or the settlement does survive and is in force between the parties as a contract which has superseded the earlier contract and subsists until a new award or negotiated set tlement takes its place.
Like Nature, Law abhors a vacuum and even on the notice of termination under Sections 19(2) or (6) the sequence and consequence cannot be just void but a continuance of the earlier terms, but with liberty to both sides to raise disputes, negotiates settlements or seek a reference and award.
Until such a new contract or award replaces the previous one, the former settlement or award will regulate the relations between the parties.
Such is the understanding of industrial law at least for 30 years as precedents of the High Courts and of this court bear testi mony.
To hold to the contrary is to invite industrial chaos by an interpretation of the ID Act whose primary purpose is to obviate such a situation and to provide for industrial peace.
To distil from the provisions of Sec. 19 a conclusion diametrically opposite of the objective, intendment and effect of the Section is an interpretative, stultification of the statutory ethos and purpose.
Industrial law frowns upon a lawless void and under general law the contract of service created by an award or settlement lives so long as a new lawful contract is brought into being.
To argue other wise i, to frustrate the rule of law.
If law is a means to an end order is society can it commit functional harakiri by leaving a conflict situation to lawless void"? In our view the above Sections 19(2) and 19(6) of the Act cannot give any benefit to the respondents in the fact of the present case.
It is not 290 in dispute that the period of the First Settlement was agreed upto 31st March, 1974.
The question which calls for our consideration is not the applicability of the First Settlement, but the real question to be considered is wheth er the Board could have appointed or not the respondents on the post of Meter Reader/Meter Checker Gr.
II in pay scale No. 2 after 1.4.
The respondents/employees in the present case want to take advantage of the First Settlement simply on the ground that it did not make any mention of Meter Reader/Meter Checker Gr.
I or II and it simply made mention of Meter Reader/Meter Checker to whom pay scale No. 3 was given.
The above ambiguity was clarified by an agree ment between the Board and the Union representing the em ployees as early as on 2.12.
1972 itself to the effect that Meter Reader/Meter Checker can be placed in two different grades.
After this there was no restriction on the Board to make appointment of the Meter Reader/Meter Checker in Grade II after 1.4.
That apart there was clear mention in the appointment orders of the respondents that they were appointed as Meter Reader/Meter Checker Gr.
II in pay scale No. 2.
Learned counsel for the respondents/employees were unable to place any law, Rule or Regulation of the Board to show that the Board had no power to make such appointments of the Meter Reader/Meter Checker in Gr.
The Board had already taken the stand the first settlement was clarified by the second settlement and as such even if the High Court had quashed the second settlement, it was at least a suffi cient notice within the meaning of Section 19(2) of the Act that the Board had terminated the first settlement after 31.3.
The Regulations deemed to have come into force from 1.4.1974 also clearly provided for pay scale No. 2 for Meter Reader/Meter Checker Gr.
The Division Bench of the High Court refused to consider the above argument placed on behalf of the Board on the ground that learned counsel for the appellants was asked to show from the writ petitions whether this point was taken in the writ petitions or not and the learned counsel candidly admitted that it was not raised in the writ petitions filed by the petitioners.
The High Court further observed in this regard that as this point was not taken in the writ peti tions and it was not argued before the Learned Single Judge, they did not consider it necessary to examine it.
We have already extracted in extenso the observations of the High Court in this regard in the earlier part of the Judgment.
There is a complete fallacy, in the above order in as much as the Board was not the petitioner before the High Court and there was no question of taking any such ground in the writ petitions.
In one of the above appeals No. 2901 of 1985 Rajasthan State Electricity 291 Board & Ors.
vs Sharad Chander Nagar reply to the writ petition filed by the Board has been placed on record as Annexure 'C '.
In the said reply in Para (8) it has been stated as under: "That the contents of Para No. 8 of the writ petition are wrong and denied.
The petitioner was not appointed at the time of settlement date 22.2.1972.
The Wage Board set tlement dated 22.2.1972, which was in force upto 31.3.
1974, and thereafter the Rajasthan State Electricity Board Employ ees (Emoluments) Regulation 1978 was (sic) come into force with effect from 1.4.1974 and wages of all the employees were revised in pursuance of the Rajasthan State Electricity Board (Emoluments) Regulation 1978.
The copy of the Board (Emoluments) Regulation 1978 is submitted herewith as Annex ure "B".
Apart from the above circumstances of the case the Board in its reply to the writ petition also took the stand that the post of the Meter Reader Gr.
I is a promotion post while the post of Meter Reader Gr.
II is filled by direct recruit ment.
The Rajasthan State Electricity Board (Emoluments) Regulation 1978 made in exercise of the powers conferred by Sec.
79 Sub sections (c) & (k) of the have Statutory force and it has been clearly mentioned that they 'shall be deemed to have been made applicable from 1st April, 1974.
The Board had set up their case in the reply to the writ petition on the basis of these Regulations and it was the duty of the Division Bench of the High Court to have looked into the reply filed by the Board and to decide the effect of such statutory regulations in the present case.
The Board under Clause (C) of Regulation 79 was fully empowered to provide for the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service or under the residuary clause (k) for any other matter arising out of the Board 's function under this Act for which it is necessary or expedient to make regulations.
We have gone through the regulations which have been brought into force from 1st April, 1974 and in Schedule II group 'B ' at Item No. 7 Meter Reader II/Meter Checker II has been fixed in the revised pay scale of Rs.260 464 (original scale Rs.80 194) and in group 'C ' at Item No. 21 Meter Reader I/Meter Checker I in scale No. 3 revised pay scale Rs.370 570 (original scale Rs. 126 250).
The High Court committed a serious error in ignoring Clause IX of the First Settlement dated 22.2.1972 as well as the Regulations made by the Board in 1978.
292 So far as the cases of Udai Lal, Shyam Lal and Prem Shankar are concerned even if the Board did not challenge the order of the High Court dated 28.3.1982 in their cases, it cannot act as res judicata or as estoppel against the Board in challenging the present order of the High Court before this Court.
There is no question of applying the principle of equal pay for equal work in the facts and circumstances of this case and to allow Meter Readers II/Meter Checker Gr.
II, the pay scale of Meter Reader/Meter Checker Gr.
I. Apart from that, these controversies have been raised by the respondents for the first time by filing affidavits before this Court at the fag end of arguments, and these questions being mixed questions of fact and law, cannot be permitted to be raised now.
In the result, we allow all these appeals, set aside the Judgment of the High Court, and dismiss all the writ peti tions.
In the facts and circumstances of the case we direct the parties to bear their own costs.
R.S.S. Appeals al lowed.
|
A settlement was arrived at on 22.2.1972 between the Rajasthan State Electricity Board and the Union representing its employees.
In pursuance of this settlement, notification dated 22.3.1972 was issued revising the pay scales of var ious categories of posts, effective from 1st April, 1969.
As per the settlement, Meter Reader/Meter Checker was mentioned under scale No. 3.
On December 2, 1972 a Second Settlement was entered into between the parties with a view to removing certain ambigui ties in the earlier settlement.
In this second Settlement, notified on 6.12.1972, it was agreed to have two categories of Meter Readers, that is, Meter Reader I/Meter Checker I and Meter Reader II/Meter Checker II.
This settlement was made effective w.e.f. 1.4.1968.
Some employees appointed before 6.12.1972 challenged the notification dated 6.12.1972.
The learned Single Judge of the High Court allowed the writ petitions and quashed the notification mainly on the ground that the Second Settlement could not have been made as no conciliation proceedings were pending before the second settlement.
The Division Bench dismissed the appeal filed by the Board.
Accordingly, the Board implemented the Judgment of the High Court and issued orders to provide scale No. 3 to all the Meter Readers appointed upto 6.12.1972.
Brijlal vs Rajasthan State Electricity Board, [1979] WLN (UC) 221, referred to.
During this period, the State Electricity Board in exercise of the powers conferred by section 79, sub section (c) and (k) of the made regulations which are cared Rajasthan State 278 Electricity Board Employees (Emoluments) Regulations, 1978.
These Regulations were made applicable retrospectively from 1st April, 1974.
Under these regulations, post of Meter Reader II/Meter Checker II was mentioned in scale No. 2.
In 1979, an arbitration award was given between the Board and the union under which two categories of Meter Readers/Meter Checkers were again made.
Subsequently, 35 employees appointed between the period 197279 filed the present writ petitions in the High Court.
The stand taken by these employees was that the Notification dated 6.12.1972 had already been quashed by the High Court and as such they were to be governed by the First Settlement dated February 22, 1972 in which there was only one category of Meter Reader/Meter Checker to whom pay scale No. 3 had been given and as such they were also entitled to pay scale No. 3.
The High Court allowed the writ petitions and granted pay scale No. 3 to all the petitioners.
The Division Bench dismissed the special appeal of the Board.
The Board has now come before this Court against such employees who were appointed after 1.4.1974.
The contentions of the Board before this Court were that (i) even if for arguments ' sake the earlier decision given by the High Court may be considered as final, that was in respect of the employees who were appointed before 6th December, 1972; (ii) as regards the present employees no benefit could be granted in their case as the First Settle ment itself was to remain in force upto 31st March, 1974; (iii) in any case in the appointment orders of the respond ents it was clearly mentioned that they were appointed as Meter Reader/Meter Checkers Gr.
II in the pay scale No. 2; and (iv) under the Rajasthan State Electricity Employees (Emoluments) Regulations 1978, which were made applicable from 1st April, 1974 Meter Reader II/Meter Checker II have been placed in pay scale No. 2 and Meter Reader I/Meter Checker I have been placed in pay scale No. 3.
On behalf of the employees respondents it was connected that (i) though according to Clause IX of the First Settle ment dated 22.2.1972 the settlement was to remain in force till 31st March, 1974 yet the same would remain in operation until the expiry of two months from the date on which a notice in writing of an intention to terminate the settle ment was given by one of the parties to the other party or parties to the settlement as provided under sub section (2) of Section 19 of the ; (ii) that an arbitration award was given in 1979 279 between the Board and the employees federation under which two categories of Meter Readers/Meter Checkers were again made and hence all the Meter Readers appointed upto 1979 before the arbitration award were entitled to scale No. 3, and (iii) the contention with regard to the first settlement having come to an end on March 31, 1974 as well as the contention raised on the basis of Regulations were rightly negatived by the Division Bench of the High Court as these points were not taken in the writ petitions and were not argued before the learned Single Judge.
Allowing the appeals, this Court, HELD: (1) The respondents/employees in the present case want to take advantage of the First Settlement simply on the ground that it did not make any mention of Meter Reader/Meter Checker Gr.
I or II and it simply made mention of Meter Reader/Meter Checker to whom pay scale No. 3 was given.
The above ambiguity was clarified by an agreement between the Board and the Union representing the employees as early as on 2.12.1972 itself to the effect that Meter Reader/Meter Checker could be placed in two different grades.
After this there was no restriction on the Board to make appointment of the Meter Reader/ Meter Checker in Grade II after 1.4.1974.
[290B C] (2) There was clear mention in the appointment orders of the respondents that they were appointed as Meter Readers/Meter Checkers Gr.
II in pay scales No. 2.
Learned Counsel for the respondents/employees were unable to show that the Board had no power to make such appointments of the Meter Reader/Meter Checker in Gr.
[290D] (3) The Board had already taken the stand that the first settlement was clarified by the second settlement and as such even if the High Court had quashed the second settle ment, it was at least a sufficient notice within the meaning of section 19(2) of the that the Board had terminated the first settlement after 31.3.1974.
[290E] The Life Insurance Corporation of India vs D.J. Bahadur (4) The Rajasthan State Electricity Board (Emoluments) Regulation, 1978 made in exercise of the powers conferred by Sec.
79 Subsections (c) and (k) of the
|
ION: Civil Appeal No. 140 of 1977.
From the Judgment and Decree dated 31.1.
1973 of the Madras High Court in L.P.A. No. 6 of 1965.
A.T.M. Sampat and P.N. Ramalingam for the Appellants.
Ms. Lily Thomas for the Respondents.
The facts leading to the institution of the suit are as follows: On 3 239 March 1942, one Karuppanna Pillai (hereinafter referred to as "testator") executed his last Will and testament Ext.
Thereunder he disposed of all his properties described in five schedules, A, B, C, D and E. He directed that the properties under A, B .and
C schedules shall be respectively taken and be in the possession of the defendant, the first plaintiff and the second plaintiff.
In respect of E schedule properties, he has made a bequest creating an endowment that after his life time, it should be managed for the purpose and in the manner mentioned therein.
The dispute in the suit was as to the validity of the endowment.
One Palaniammal and Chellammal are the sisters of the plaintiffs and the defend ant.
The testator created a life estate in favour of those sisters in respect of D schedule properties with a direction that after their lifetime the properties shall be dealt with in the same manner as the E schedule properties.
We are not concerned in the present litigation with any of the proper ties in schedules A to D.
We are concerned only with the validity of the disposition of E schedule properties.
The Will is in Tamil but we are helpfully provided with the English translation of the relevant portion.
It is also found incorporated in the judgment of the District Judge.
It runs as follows: "After my lifetime, the aforesaid three persons, Ponnuswami Pillai, Malayalam Pillai and Thangavelu Pillai, shall take and manage the E schedule properties, from out of the income from the said properties pay the kist for the aforesaid E schedule properties, and out of the balance of income for the salvation of my soul after my lifetime, shall enter mY body, after my life is extinct, in the land S.F. No. 68/B, Punjai Thottakurichi Village pertaining to the aforesaid E schedule, build structure therefore and put up light every day shall plant flower plants in the said land and grow them, shall construct a Matam for annual ceremonies, install pictures therein, put up light in the Matam every day, conduct Guru Pooja, distribute saffron coloured clothes and on that day, shall feed the poor.
Since the aforesaid Pon nuswami Pillai is the eldest of the sons, he shall be the Manager, to conduct the above matters.
The surplus income shall be taken in the shares of 2/4 by Ponnuswami Pillai, 1/4 by Malayalam Pillai, and 1/4 by Thangavelu Pillai.
After the said Ponnuswami Pillai 's life, out of his make heirs, the eldest son shall conduct in the same manner as above and the surplus income shall be taken by the said eldest son.
" 240 There then follows a residuary clause which is as under: "The movable and immovable properties belonging to me and not mentioned herein shall be taken and enjoyed by the aforesaid three persons after my lifetime." The plaintiff 's case has been that the testator could not have created on endowment of properties for construction of his own tomb or Samadhi and for performing Pooja and ceremonies thereat.
Since the testator has bequeathed E schedule properties for "Samadhi Kainkaryam", the trust would be invalid and the said properties should be shared by the plaintiffs and defendant under the residuary clause in the Will as if they remain undisposed of by the testator.
The suit is also for account from the defendant regarding the income of the E schedule properties.
The defendant has resisted the suit and sought to justi fy the creation of the trust and its purposes.
It was con tended inter alia, that the Matam and the Samadhi were constructed for different purposes.
They are separated by a respectable distance.
At the Samadhi, there is no perform ance of pooja.
It is only at the Matam, the ceremonies and Guru Pooja are performed with feeding the poor and distribu tion of saffron clothes.
These acts are distinctly and substantially religious and charitable purposes.
It was also contended that the plaintiffs in any event are not entitled to claim partition and separate possession of the Schedule properties.
At the trial, learned Subordinate Judge accepted the plaintiff 's case declaring that the dedication of the E Schedule property for purposes enumerated under the Will was invalid and accordingly he decreed the suit as prayed for.
In appeal, the District Judge took a different view.
He held that the purposes for which the E Schedule properties have been dedicated were charitable or religious in nature.
He dismissed the suit but gave certain directions to the de fendant for rendition of accounts of the surplus income from the properties which the defendant as a manager is obliged to do.
In second appeal to the High Court, the learned single Judge expressed the view that the Trust in respect of the properties for construction of the Samadhi with raising flower garden and lighting up would not be valid as it is not recognised under the Hindu Law.
That part of E Schedule properties referable to the Samadhi and its maintenance should remain as the property undisposed of by the Will.
241 Neither the plaintiffs nor the defendants will be entitled to it under the terms of the Will.
He however, held that the endowment and directions as to application of the property for construction of the Matam and performance of ceremonies and pooja would be valid since they are religious and char itable in nature.
He dismissed the suit for partition while at the same time affirmed the decree for accounting the surplus income from the properties referable to the Matam and charities.
In the Letters Patent Appeal, the Division Bench has disagreed with the views expressed by learned Single Judge.
It has been observed that the Matam is close to the Samadhi and the former has been built for the purpose of providing a convenient place for the purpose of offering worship and performing ceremonies connected with the Samadhi and Matam are covered by one scheme, and therefore, the entire trust must fail.
In support of the conclusion, the Division Bench largely relied upon the decision of the Privy Council in N. Subramania Pillai vs A. Draviyasundaratn Pillai, AIR 1950 PC 37.
In the Privy Council case referred above, the testator by name 'Kanakasabhapathy ' in his Will constituted a Trust of his properties with certain directions as to its applica tion.
He directed that "his body should be buried in a Sa madhi and at the same place where the Samadhi is made, a Matam should be built with a stone inscription in the front portion of the Matam as Kanakesabhapathi Samadhi Matam '.
He also directed that regular worship should be conducted with Guru Pooja and poor feeding.
Construing the terms of the Will, the Privy Council observed that the directions given by the testator were embodied in a single scheme and they were primarily intended to keep his memory alive and to enhance his own posthumous reputation.
Feeding the poor was to be conducted during the daily pooja to be performed in connection with the burial place and it did not provide for any charity apart from the ceremonies to be conducted at his own burial place and therefore the trust must fail.
In Hindu system there is no life of demarcation between religion and charity.
On the other hand, Charity is regarded as a part of religion.
Hindu Law of Religious & Charitable Trusts, by B.K. Mukherjea, 5th Ed.
p. 11.
But "what are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu Law and Hindu notions.
" Mayne 's Hindu Law 10th Ed.
p. 9 12.
242 The perpetual dedication of property for construction of a Samadhi or a tomb over the mortal remains of an ordinary person and the making of provisions for its maintenance and for performing ceremonies in connection thereto however, has not been recognised as charitable or religious purpose among the Hindus.
But the Samadhi of a Saint stands on a different footing.
This was the consistent view taken by the Madras High Court in several cases, namely, Kunhamutty vs T. Ahmad Musaliar & Ors., ILR 1953 Mad. 29; A. Draivaisundram Pillai vs N. Subramania Pillai, ILR 1954 Mad. 854; Veluswami Goundan vs Dandapani, 1946 Mad.
This Court in Saraswati Ammal vs Rajagopl Ammal, ; has approved those decisions of the Madras High Court.
Jagannatha Das, J., who spoke for the Court said (at 289): "We see no reason to think that the Madras decisions are erroneous in holding that perpetual dedication of property for worship at a tomb is not valid amongst Hindus.
" The view taken in Saraswati Ammal case has been reiter ated in Nagu Reddiar & Ors.
vs Banu Reddiar & Ors., ; where Kailasam, J., observed (at 600): "The raising of a tomb over the remains of an ancestor, an ordinary person is not recognised as religious in nature.
The burden is on the person setting up a case of religious practice in the community to prove it.
This prohibition may not apply when an ancestor is cremated and a memorial raised for performing Shradha ceremonies and conducting periodical worship, for, this practice may not offend the Hindu senti ment which does not ordinarily recognise entombing the remains of the dead.
" We are, therefore, inclined to hold that the provision made by the testator for construction of a Samadhi over his burial place and for its maintenance cannot be regarded as valid.
But that however, does not mean that the entire dedica tion of E Schedule properties must fail.
It is one of the cardinal principles of construction of Wilts that wherever it is possible, effect should be given to every bequest of the testator unless it is opposed to law, custom or prac tice.
If the testator has set apart the property intended for endowment and disclosed his charitable intent in any one of his directions, such direction may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion 243 or Hindu Law.
Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved.
In the instant case, the E Schedule has been endowed for con struction of a Samadhi and Matam, and for performing reli gious rites and charitable acts.
The Samadhi and Matam are constructed in the same survey number but are independent of each other, separated by a distance of about 15 feet.
Per formance of annual ceremonies, conducting Guru Pooja, feed ing the poor and distribution of saffron coloured clothes to mendicants appear to be independent and have no connection with the Samadhi.
There is no indication in the Will that Guru Pooja should be performed to the testator.
In fact he has not even indicated that his photo should be kept in the Matam.
His directions are only to install pictures at the Matam, put up light every day in the Matam and perform Guru Pooja once a year with the other charities.
These provisions in the Will are not in close parallel with and indeed far removed from those obtained in the Privy Council decision in Subramania Pillai 's case.
The Division Bench of the High Court was therefore in error in relying upon that decision to invalidate the entire endowment.
Counsel for the plaintiffs nevertheless argued that the defendant has been performing Guru Pooja only to the testa tor and not for the deity.
He referred to us Ext.
A 5 to A 9 which are the invitations sent by the defendant for the annual ceremonies and Guru Pooja to be performed to the testator.
But in construing the validity of an endowment created under a Will, we cannot be guided merely by the acts of the manager or the manner in which the executor of the Will has understood the directions of the testator.
We are required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will.
The terms of the Will in this case clearly specify the religious or charitable purposes.
The defendant Ponnuswami Pillai (DW 1) in his cross examination has also explained that there was a mistake in the writing of Ext.
A 5 to A 9 for which he was not responsible.
He has testified that he performed really the annual ceremonies on the date of death of the testator and no pooja was performed at Samadhi.
The Poojas are performed only at Matam with Guru Pooja to Lord Subramania on 'Thai Poosam ' every year.
He has further stated that the annual ceremonies of the testator fall on Margali Mrisaseerusham Nakshatram and Guru Pooja is not performed on that day.
It is undisputed that the testator died on Margali Mrigaseerusham Nakshatram.
Ramaswamy Goundar (DW 2) has also deposed 244 that no Guru Pooja was performed on the date of death of the testator and it was performed only to Lord Subramania in Thai month every year.
He used to participate in the Guru Pooja every year alongwith the other villagers.
The evidence of Marudamuthu Pillai (DW 3) also supports these versions.
We have no reason to disbelieve the testimony of the defendant and his witnesses.
Even the evidence from the plaintiff indicates that the Matam is called 'Madam of Sri Subramanya Swami '.
B 2 is a printed marriage invitation of the plaintiff (PW 1) in which it has been expressly stated that the plaintiff 's marriage will be performed at our Madam Sri Subramaniaswami Sannadhi built by our grandfa ther Karuppanna Pillai . "Ext.
A 11 also refers to the Matam as Subramaniaswami Sannadhi.
A 2 is the Commis sioner 's Report.
The Commissioner has stated that there are pictures of Gods in the Matam.
There is pooja room.
Lord Subramania 's picture is also in the pooja room.
The deity of Sri Vinayagar in granite has been installed at a special place with material to indicate that pooja is also being performed to Sri Vinayagar.
It is true that the directions of the testator are in general terms, and there is no particular mention in the Will as to whom Guru Pooja is required to be performed since no particular deity is named in the Will.
But trust cannot be rendered invalid on that ground.
It is for the Court to ascertain the presumed intention of the testator and give effect to it.
As observed by Patanjali Shastri, J., as he then was, in Veluswami Goundan 's case where no deity is named in the deed of endowment, the court should ascertain the sect to which the donor belonged, the tenets which he held, the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained.
We agree that these are the safe guides.
If we peruse the various terms in the Will and the provisions made for offerings, it will be clear that the testator was a great devotee of Lord Subramaniaswami.
He has made provisions to perform annual pooja to Lord Subramanias wami and Sri Vinayagar in the different temples out of the income from A to C Schedules.
The Matam also goes by the name of "Subramanya".
The evidence of DW 1 to DW 2 further indicates that Guru Pooja is being performed to Lord Subra manya followed by poor feeding and distribution of saffron coloured clothes.
The endowment with regard to these pur poses must therefore be upheld.
245 The permanent dedication of properties for performance of annual ceremonies of the testator is equally valid.
Whether one terms it as annual Shradha or anniversary, it is certainly a religious rite and it is not uncommon among the Hindu testators to make provisions in their Wills for cele bration or performance of such anniversaries of themselves or their ancestors.
We are, therefore, unable to agree with the decision of the Division Bench of the High Court.
We are on the other hand in agreement with the views expressed by learned Single Judge.
In the result, the appeal is allowed.
In reversal of the judgment of the Division Bench, the judgment and decree of the learned Single Judge are restored.
The respondents must pay the costs of this appeal to the appellants.
T.N.A. Appeal al lowed.
|
K. bequeathed his properties describing them in five Schedules, A, B, C, D and E.
In respect of the 'E ' schedule properties, he created an endowment stating that after his death it should be managed for construction of his own tomb or samadhi and for performing poojas and ceremonies thereat.
Two of the legatees under the will filed a suit against the third legatee, the manager of the trust, for partition and possession of the E schedule properties as well as for rendition of accounts pertaining to the income from the said properties contending: (i) that under Hindu Law the testator could not have created an endowment of properties for con struction of his own tomb or samadhi for performing poojas and ceremonies thereat; (ii) since the testator had be queathed his properties for "Samadhi Kainkaryam", the Trust was invalid; and that the said properties should be shared by the plaintiffs and the defendant under the residuary clause of the will as if they remained undisposed of by the testator.
The defendant resisted the suit contending that Matam and the Samadhi were constructed for different purposes and it is only at the Matam that the ceremonies and Guru Pooja were performed with feeding the poor and distribution of saffron clothes; and that these acts were distinctly and substantially religious and charitable purposes.
The subordinate judge accepted the plaintiff 's case declaring that the dedication of the 'E ' schedule properties was invalid and accordingly he decreed the suit.
236 On appeal the District Judge dismissed the suit with a direction to the defendant for rendition of accounts of the surplus income from the properties on the ground that dedi cation of properties by the testator was for charitable or religious in nature.
On second appeal a single Judge of the High Court dismissed the suit for partition but affirmed the decree for accounting the surplus income from the properties referable to the Matam and charities by holding (i) that the trust in respect of the properties for construction of samadhi was not valid as it was not recognised under the Hindu Law; (II) but the endowment and directions as to application of the property for construction of Matam and performance of cere monies and pooja were valid since they were religious and charitable in nature.
On further appeal by Letters Patent the Division Bench of the High Court, relying upon the decision of the Privy Council in N. Subramania Pillai vs A. Draviyasundaram Pil lai, AIR 1950 PC 37, held that the entire endowment was invalid under Hindu Law.
Hence this appeal.
Allowing the appeal, this Court, HELD: 1.
The perpetual dedication of property for construction of a samadhi or a tomb over the mortal remains of an ordinary person and the making of provisions for its maintenance and for performing ceremonies in connection thereto is not recognised as charitable or religions purpose among the Hindus.
But the Samadhi of a Saint stands on a different footing.
Therefore, the provision made by the testator for construction of a Samadhi over his burial place and for its maintenance cannot be regarded as valid.
[242A B Kunhamutty vs T. Ahmad Musaliar & Ors., I.L.R. ; A. Draviyasundaram Pillai vs N. Subramania Pillai, I.L.R. and Veluswami Goundan vs Dandapani, , approved.
Saraswati Ammal vs Rajagopal Ammal, ; and Nagu Reddiar & Ors.
vs Banu Reddiar & Ors., ; , referred to.
It is one of the cardinal principles of construc tion of Wills that wherever it is possible, effect should he given to every bequest of the testator unless it is opposed to law, custom or practice.
If the testator has set apart the property intended for endowment and disclosed his 237 charitable intent in any one of his directions, such direc tion may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion or Hindu Law.
Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved.
[242G H] 2.1 In the instant case the scheduled properties have been endowed for construction of a Samadhi and Matam, and for performing religious rites and charitable acts.
The Samadhi and Matam are constructed in the same survey number but are independent of each other, separated by a distance.
The other provisions in the will relating to performance of annual ceremonies conducting Guru Pooja, feeding the poor and distribution of saffron coloured clothes to medicants are independent and have no connection with the Samadhi.
Consequently, the entire dedication of the Scheduled proper ties will not fail.
[243A B] N. Subramania Pillai vs A. Draviyasundram Pillai, A.I.R. , held inapplicable.
In construing the validity of an endowment created under a Will, the Court cannot be guided merely by the acts of the Manager or the manner in which the executor of the Will has understood the directions of the testator.
The Court is required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will.
3.1 A trust cannot be rendered invalid on the ground that the directions of the testator are in general terms and that there is no particular mention in the will as to whom Guru Pooja is required to be performed since no particular deity is named in the Will.
It is for the Court to ascertain the presumed intention of the testator and given effect to it.
Therefore where no deity is named in the deed of endow ment, the Court should ascertain the sect to which the donor belonged, the tenets which he held, the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained.
These are the safe guides.
[244E & F] Veluswami Goundan vs Dandapani, [1946] 1 MLJ 354 AIR 1946 Mad. 485, referred to. 3.2 In the instant case there is no indication in the Will that Guru Pooja should be performed to the testator.
On the other hand the terms 238 in the Will show that the testator was a great devotee of Lord Subramaniaswami.
The evidence also indicates that Guru Pooja is being performed to Lord Subramanya followed by poor feeding and distribution of saffron coloured clothes.
These terms of the will clearly specify the religious or charita ble purposes.
Therefore the endowment with regard to these purposes is upheld.
[244E & G H] 3.3 Annual Shradha or anniversary is a religious rite.
The permanent dedication of properties for performance of annual ceremonies of the testator is equally valid.
[245A] 4.
The Division Bench of the High Court was therefore in error in invalidating the entire endowment.
Accordingly, the judgment of the Division Bench is reversed and the judgment and decree of the Single Judge are restored.
[245B C] 5.
In Hindu system there is no line of demarcation between religion and charity.
On the other hand, charity is regarded as a part of religion.
But what are purely reli gious purposes and what religious purposes will be charita ble must be entirely decided according to Hindu Law and Hindu notions.
[241G H] Hindu Law of Religious & Charitable Trusts, by B.K. Mukherjea, 5th Edn.
p. 11; Mayne 's Hindu Law, 11th Edn.
p. 912, referred to.
|
vil Appeal Nos.
1467 69 of 1976.
295 Appeals by Certificate from the Judgment and Order dated 7.5.
1965 of the Calcutta High Court in Income Tax Reference No, 28 of 1954.
B. Sen, N.B. Singh, Sanjay J. Khaitan, Darshan Singh, B.N. Dhar and Ms. Suman Khaitan for the Appellant.
S.C. Manchanda, section Rajappa and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
These appeals by the assessee arise from the judgment dated 7.5.1965 of the Calcutta High Court.
The question relates to the assessment for the years 1945 46, 1946 47 and 1947 48 under the Indian Income Tax Act, 1922 (hereinafter referred to as "the Act").
The assessee was a company resident in British India during the relevant years.
It had a cotton mill in British India.
The cloth manufac tured by the mill was sold in British India as well as in the native States.
In the assessment for 1944 45, it had been held that, for the sales effected in the native States, 1/3rd of the profit was, in terms of section 42(3) of the Act, deemed to have accrued to the assessee in British India.
This profit was considered as the profit attributed to the manufacturing part of the business carried out in British India, although the sales were effected in the native States.
On the same basis, assessment in terms of section 42(3) was made in respect of the assessment years 1945 46, 1946 47 and 1947 48.
In addition to the deemed income in British India, the assessee was assessed under section 14(2)(c) of the Act in respect of certain sums remitted to British India from the native States.
The assessee 's contention that 1/3rd of the income having been assessed under section 42(3) of the Act as income deemed to have accrued in British India, no further assessment should be made under section 14(2)(c) of the Act with respect to profits brought into British India, was rejected by the Income Tax Officer as well as the Appellate Assistant Commissioner.
On further appeal, the Income Tax Appellate Tribunal also held that there was no substance in that contention.
The Tribunal stated " . . the assessment of profits brought into British India from a Native State under Section 14(2)(c) is on a distinct and separate footing from the assessment of Native States 296 profits which are deemed to have accrued in British India under Section 42 . " The assessee raised an additional contention for the first time before the Tribunal.
That contention was that the remittances made to British India had to be taken as having first come out of profits "deemed to have accrued in British India" and brought to tax under section 42(3), and only the excess remittances, if any, could be taken as having come out of the remainder profits exempted from tax under section 42.
The assessee pointed out that I/3rd of the profits having been already charged under section 42(3), by reason of the legal fiction contained in that sub section, any amount brought into British India upto the extent of 1/3rd should be presumed to be that which was attributable to that 1/3rd which had already suffered tax, and the balance remit tance, if any, alone should be taxed under section 14(2)(c) of the Act.
In other words, according to the assessee, if the remittances made to British India in any accounting year exceeded the amount taxed under section 42(3) of the Act, then it was only so much of that excess which could be taxed under section 14(2) of the Act.
The Tribunal did not accept this contention.
However, it stated: " . . it appears to us that the common sense point of view would be that the remittances to British India include both the assessed as well as the exempt profits in the same proportion in which those existed in the Native State . .
It therefore appears to us that the correct view would be to apportion the remittances over the assessed and the exempt parts in the same proportion as these existed in the total profits made in the Native State.
As such proportion was one third and two thirds, the remittances would be similarly split up.
Thus 1/3rd of the remittances has come out of profits assessed under Section 42.
On this basis, these additions made by the Income Tax Officer and confirmed by the Appellate Assistant Commissioner will have to be reduced by one third of such remittances.
" On a reference under section 66(1) of the Act, the High Court by its judgment dated 22.7.1957, found that the facts stated were insufficient and that there was an error appar ent on the face of the question as framed.
The High Court accordingly called for a supplementary statement of the case.
In its supplementary statement, the Tribunal referred the following question: 297 "Whether on the facts and in the circumstances of the case, the sums of Rs.50,195 for 1945 46, Rs.76,155 for 1946 47 and Rs.6,00,909 for 1947 48 assessments have been rightly in cluded in the assessable income of the applicant under Section 14(2)(c) of the Indian Income tax Act as profits brought into British India from Indian States?" The High Court by its judgment dated 7.5,1965 rejected the assessee 's contention that, where there was a mixed fund composed of taxed and non taxed items and a neutral payment was made i.e. without specifying the exact source of the payment, the taxing authorities, in the absence of any evidence to the contrary, had to proceed on the basis that the payment was made out of that part of the mixed fund which had already borne tax.
The High Court, however, ob served: " . in this case the assessee did not have two funds but only one fund composed of taxed and non taxed amounts and as one third of the entire amount of profits made by the assessee in the Indian States had been subjected to tax the income tax authorities took a reasonable view in excluding one third of the remitence to British India from taxation in each year.
There were sufficient profits in each year out of which remittance could be made even after deduction of the portion which had been taxed . . ".
In the result, the question referred was answered by the High Court against the assessee.
Hence the present appeals.
If there were two funds at the disposal of the assessee one upon which tax had been already levied and another which was liable to be brought to tax a presump tion, in the absence of evidence to the contrary, might arise that the remittance made by the assessee in the course of its business was made out of the fund that was already taxed and not out of the fund that remained to be taxed.
See Meyyappa Chettiar vs The Commissioner of Income Tax, , 45.
That was apparently not the case here, for, on the facts found, the assessee did not have two funds, but only one fund composed of taxed and non taxed amounts.
As one third of this amount had already been taxed under sec tion 42(3) of the Act, 1/3rd of the remittances to British India in a particular year was held to be exempted from levy.
Relying on the principle referred to in Paton (As Pen ton 's Trustee) vs CommissiOners of Inland Revenue, 21 Tax Cases 626, Dr. 298 B. Sen, on behalf of the assessee, however, submits that where there was a mixed fund, as in the present case, con sisting partly of taxed and partly of untaxed monies, any remittance made should be deemed to have been paid out of that part of the money which had suffered tax.
It is a right of the tax payer to attribute the payment to the taxed money, so as to obtain the benefit allowed by the law.
Lord Wright, M.R. in Paton (As Penton 's Trustee) vs Commissioners of Inland Revenue, 21 Fax Cases 626 at 639), referring to the right of the tax payer to attribute payment to taxed monies, stated: " . . in the ordinary course, a person paying interest does not generally appropriate the payment to income or to any particular piece of income or any specific asset: he has the general body of available funds, say his banking ac count, if he has only one, and he pays by drawings on that account.
which may include income, borrowed money, capital and so forth.
This is what is meant by payment out of a mixed fund, or payments made out of the general till, or payments made neutrally.
The Revenue authorities have no right in such cases to appropriate those payments to non taxable rather than taxable moneys.
Hence the taxpayer is given the right of attribution in the way most favourable to himself It is presumed, in the absence of evidence to the contrary, that payments are made out of income".
This principle of attribution is no doubt applicable in certain circumstances, such as those narrated by Lord Wright in Paton (supra), although in that case, on the facts found, the principle was not applied.
Whether that principle is applicable in a particular case depends upon the facts of that case and the provisions of the statute.
The abstract principle of attribution, which is applicable in certain circumstances, can be adopted only to the extent that it is consistent with the law and facts.
It is well to recall: " . . there is no room for any intendment; there is no equity about a tax: there is no presumption as to a tax; you read nothing in; you imply nothing, but you look fairly at what is said and at what is said clearly and that is the tax".
[Per Rowlatt, J. The Cape Brandy Syndicate vs The Com 299 missioners of Inland Revenue, 12 Tax Cases 359,366].
The view taken by the Tribunal, with reference to the facts found and the provisions of the statute, was, in our opin ion, reasonable.
It was so found by the High Court.
In the circumstances, we hold that the Tribunal having excluded 1/3rd of the remittances to British India from taxation during a particular year, the High Court was justi fied in refusing to grant any further relief to the asses see.
Accordingly, we see no merit in these appeals and they are dismissed with costs throughout.
N.P.V. Appeals dis missed.
|
The appellant, a company resident in British India, had a cotton mill.
The cloth manufactured in the mill was sold in British India as well as native States.
For the assess ment years 194546, 194647 and 1947 48, the company was assessed under Section 14(2)(c) of the Income Tax Act, 1922, in respect of certain sums remitted to British India from native States, in addition to the assessment under Section 42(3), deeming 1/3rd of the profit from the sales effected in native States, as having accrued from the manufacturing part of business in British India.
The assessee 's contention that 1/3rd of income having been assessed under Section 42(3), as income deemed to have accrued in British India, no further assessment should be made under Section 14(2)(c) was rejected by the Income Tax Officer, the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal.
The Tribunal also rejected the assessee 's additional contention that if the remittances made to British India in any year exceeded the amount taxed under Section 42(3), then it was only so much of the excess which could be taxed under Section 14(2)(c).
However, it reduced the additions made by the Income Tax Officer and affirmed by the appellate authority, by 1/3rd of such remit tances.
On a reference made under Section 66(1), the High Court confirmed the Tribunal 's decision.
In the appeal before this Court, on behalf of the appel lantassessee R was contended that where there was a mixed fund, as in the instant case, consisting partly of taxed and partly of untaxed monies, any remittance made should he deemed to have been paid out of that 294 part of the money which had suffered tax and that it was the right of the tax payer to attribute the payment to the taxed money so as to obtain the benefit allowed by the law.
Dismissing the appeals, this Court, HELD: 1.1 If there were two funds at the disposal of the assessee one upon which tax had been already levied and another which was liable to be brought to tax a presump tion, in the absence of evidence to the contrary might arise that the remittance made by the assessee in the course of its business was made out of the fund that was already taxed and not out of the fund that remained to be taxed.
[297F] Meyyappa Chettiar vs The Commissioner of Income Tax, , 45, referred to. 1.2 The tax payer is given the right of attribution in the way most favourable to himself.
In the absence of evi dence to the contrary, it is presumed that payments are made out of income.
This abstract principle of attribution is applicable in certain circumstances.
Whether it is applica ble in a particular case depends upon the facts of that case and the provisions of the statute.
It can be adopted only to the extent that it is consistent with the law and facts.
[298E F] Paton (As Penton 's Trustee) vs Commissioners of Inland Revenue, 21 Tax Cases 626 and The Cape Brandy Syndicate vs The Commissioners of Inland Revenue, 12 Tax Cases 359, 366, referred to.
In the instant case, on the facts found the assessee did not have two funds, but only one fund composed of taxed and non taxed amounts.
As one third of this amount had already been taxed under section 42(3) of the Act, 1/3rd of the remittances to British India in a particular year was held to be exempted from levy.
The Tribunal having excluded 1/3rd of the remittances to British India from taxation during a particular year, the High Court was justified in refusing to grant any further relief to the assessee.
[297G; 299B]
|
vil Appeal No. 262 (NC) of 1976.
From the Judgment and Order dated 24.4.1975 of the Rajasthan High Court in D.B. Civil I.T.R. No. 45 of 1969.
Mrs. Anjali Verma for JBD & Co. and D.N. Misra for the Appellant.
O.P. Vaish, section Rajappa, Vinay Vaish, S.K. Aggarwal and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of the High Court of Rajasthan dated 24.4.1975 answering the question referred to it by the Income Tax Appellate Tribunal in the negative, in favour of the Revenue and against the assessee.
The question referred to the High Court was as under: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act.
1961?" The circumstances leading to the reference and the appeal was necessary to be stated.
The Natural Science (India) Ltd. predecessor ininterest of the assessee acquired a lease from the Maharaja of the 317 erstwhile Bikaner State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles at Jamsar.
The lease was liable to be renewed after expiring of 20 years.
The Natural Science (India) Ltd. by a deed of assignment dated December 11, 1948 assigned the rights under the lease to the Bikaner Gypsums Ltd., a compa ny wherein the State Government owned 45 per cent share.
The Bikaner Gypsums Ltd. (hereinafter referred to as the asses see) carried on the business of mining gypsum in accordance with the terms of conditions stated in the lease.
The asses see entered into an agreement with Sindri Fertilizers, a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5 per cent quality.
Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic, convenient and beneficial manner and to treat the same by calcination and other proc esses.
Clause 2 of Part II of the lease authorised the lessee to sink, dig, drive, quarry, make, erect, maintain and use in the said lands any borings, pits, shafts, in clines, drifts, tunnels, trenches, levels, water ways, airways and other works and to use, maintain, deepen or extend any existing works of the like nature in the demised land for the purpose of winning and mining of the mineral.
Clause 3 granted liberty to erect, construction, maintain and use on or under the land any engines, machinery, plant, dressing, floors, furnaces, brick kilns, like kilns, plaster kilns etc.
Clause 4 conferred liberty on the lessee to make roads and ways and use existing roads and ways.
Clause 7 granted liberty to the assessee to enter upon and use any part of parts of the surface of the said lands for the purpose of stacking, heaping or depositing thereon any produce of the mines or works carried on and any earth materials and substance dug or raised under the liberties and powers.
Clause 8 conferred liberty on the lessee to enter upon and occupy any of the surface lands within the demised lands other than such as are occupied by dwelling houses or farms and the offices, gardens and yards.
Clause 9 conferred power on the lessee to acquire, take up and occupy such surface lands in the demised lands as were then in the occupation of any body other than the Government on payment of compensation and rent to such occupiers, and if the lessee is unable to acquire such land from the tenants and occupiers, the Government undertook to acquire such surface land for the lessee at the lessee 's cost.
Clause 15 of Part II conferred liberty and power on the lessee to do all things which may be necessary for winning, working getting the said minerals and also for calcining, smelting, manufac turing, converting and making merchantable.
318 Part III of the lease contained restrictions and condi tions to the exercise of the liberties and powers and privi leges as contained in Part II of the lease.
Clause 2 of Part III provided that the lessee shall not enter upon or occupy surface of any land in the occupation of any tenant or occupier without making reasonable compensation to such tenant or occupier.
Clause 3 prescribed restriction on mining operation within 100 yards from any railway, reser voir, canal or other public works.
It reads as under: "Clause 3: No mining operations or working shall be carried on or permitted to be carried on by the lessee in or under the said lands at or to any point within a distance of 100 yards from any railway, reservoir, canal or other public works or any buildings or inhabited site shown on the plan hereto annexed except with the previous permission in writ ing of the Minister, or some officer authorised by him in that behalf or otherwise then in accordance with such in structions, restrictions and conditions either general or special which may be attached to such permission.
The said distance of 100 yards shall be measured in the case of a Railway Reservoir or canal horizontally from the outer of the bank or of outer edge of the cutting as the case may be and in the case of a building horizontally from the plinth thereof.
" The above clause had been incorporated in the lease to protect the railway track and railway station which was situate within the area demised to the lessee.
Clause 5 of Part VIII of the agreement stated as under: "Clause 5: If any underground or mineral rights in any lands or mines covered and leased to the lessee in accordance with the provisions of those presents be claimed by any 'Jagir dar ' 'Pattedar ', 'Talukdar ', tenant or other person then and in all such cases the Government shall upon notice from the lessee forthwith put the lessee in possession of all such lands and mines free of all costs and charges to the lessee and any compensation required to be paid to any such "Jagir dar", 'Pattedar ', 'Talukdar ', tenant or other person claim ing to have any underground or mineral rights shall be paid by the Government." The assessee company exclusively carried on the mining of 319 gypsum in the entire area demised to it.
The Railway author ities extended the railway area by laying down fresh track, providing for railway siding.
The Railways further con structed quarters in the lease area without the permission of the assessee company.
The assessee company filed a suit in civil court for ejecting the Railway from the encroached area but it failed in the suit.
The assessee company, there upon, approached the Government of Rajasthan which had 45 per cent share of it and the Railway Board for negotiation to remove the Railway Station and track enabling the asses see to carry out the mining operation under the land occu pied by the Railways (hereinafter referred to as the 'Rail way Area ').
Since, on research and survey the assessee company found that under the Railway Area a high quality of gypsum was available, which was required as raw material by the Sindri Fertilizers.
All the four parties namely, Sindri Fertilizers, Government of Rajasthan, Railway Board and the assessee company negotiated the matter and ultimately the Railway Board agreed to shift the railway station, track and yards to another place or area offered by the assessee.
Under the agreement the Railway authorities agreed to shift the station and all its establishments to the alternative site offered by the assessee company and it was further agreed and all the four parties, Sindri Fertilizers, Govern ment of Rajasthan, Indian Railway and the assessee company shall equally bear the total expenses of Rs. 12 lakhs in curred by the Railways in shifting the railway station, yards and the quarters.
Pursuant to the agreement, the assessee company paid a sum of Rs.3 lakhs as its share to the Northern Railway towards the cost of shifting of the Railway Station and other constructions.
In addition to that the assessee company further paid a sum of Rs.7,300 to the Railways as compensation for the surface rights of the leased land.
On the shifting of the Railway track and Sta tion the assessee carried out mining in the erstwhile Rail way Area and it raised gypsum to the extent of 6,30,390 tons and supplied the same to Sindri Fertilizers.
The assessee company claimed deduction of Rs.3 lakhs paid to the Northern Railway for the shifting of the Railway Station for the assessment year 1964 65.
The Income Tax Officer rejected the assessee 's claim on the ground that it was a capital expenditure.
On appeal by the assessee, the Appellate Assistant Commissioner confirmed the order of the Income Tax Officer.
On further appeal by the assessee the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, instead it was a revenue expenditure.
On an application made by the Revenue the Income Tax Appellate Tribunal (hereinaf ter referred to as the 320 Tribunal referred the question as aforesaid to the High Court under section 256 of the Income Tax Act, 1961.
The High Court held that since on payment of Rs.3 lakhs to the Rail way the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs. 3 lakhs was a capital expenditure and it could not be a revenue expendi ture.
On these findings the High Court answered the question in the negative in favour of the Revenue against the asses see and it set aside the order of the Tribunal by the im pugned order.
Learned counsel for the appellant contended that since the entire area had been leased out to the assessee for carrying out mining operations, the assessee had right to win, the minerals which lay under the Railway Area as that land had also been demised.
to the assessee.
Since, the existence of railway station, building and yard obstructed the mining operations, the assessee paid the amount of Rs.3 lakhs for removal of the same with a view to carry on its business profitably.
The assessee did not acquire any new asset, instead, it merely spent money in removing the ob struction to facilitate the mining in a profitable manner.
On the other hand, learned counsel for the Revenue urged that in view of the restriction imposed by Clause 3 of Part III of the lease, the assessee had no right to the surface of the land occupied by the Railways.
The assessee acquired that right by paying Rs.3 lakhs which resulted into an enduring benefit to it.
It was a capital expenditure.
Both the counsel referred to a number of decisions in support of their submissions.
The question whether a particular expenditure incurred by the assessee is of Capital or Revenue nature is a vexed question which has always presented difficulty before the Courts.
There are a number of decisions of this Court and other courts formulating tests for distinguishing the capi tal from revenue expenditure.
But the tests so laid down are not exhaustive and it is not possible to reconcile the reasons given in all of them, as each decision is rounded on its own facts and circumstances.
Since, in the instant case the facts are clear, it is not necessary to consider each and every case in detail or to analyse the tests laid down in various decisions.
However, before we consider the facts and circumstances of the case, it is necessary to refer to some of the leading cases laying down guidelines for deter mining the question.
In Assam Bengal Cement Co. Ltd. vs The Commissioner of Income Tax, West Bengal, , 'this Court observed that in the great diversity of human affairs and the complicated nature of business opera tion, it is difficult to lay down a test which would apply to all situations.
One has, therefore, to apply the criteria from the business 320 point of view in order to determine whether on fair appreci ation of the whole situation the expenditure incurred for a particular matter is of the nature of capital expenditure or a revenue expenditure.
The Court laid down a simple test for determining the nature of the expenditure.
It observed: the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring bene fit of the business it is properly attributable to capital and is of the nature of capital expenditure.
If on the other hand it is made not for the purpose of bringing into exist ence any such asset or advantage but for running the busi ness or working it with a view to produce the profits it is a revenue expenditure.
If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically.
The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure.
" In K.T.M.T.M. Abdul Kayoom and Another vs Commissioner of Income Tax, , this Court after consider ing a number of English and Indian authorities held that each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect.
The Court observed that what is decisive is the nature of the business, the nature of the expenditure, the nature of the right acquired, and their relation inter se, and this is the only key to resolve the issue in the light of the general principles, which are followed in such cases.
In that case the assessee claimed deduction of Rs.6, 111 paid by it to the Government as lease money for the grant of exclusive rights, liberty and authority to fish and carry away all chank shells in the sea off the coast line of a certain area specified in the lease for a period of three years.
The Court held that the amount of Rs.6,111 was paid to obtain an enduring benefit in the shape of an exclusive right to fish; the payment was not related to the chanks, instead it was an amount spent in acquiring an asset from which it may collect its stockin trade.
It was, therefore, an expenditure of a capital nature.
In Bombay Steam Navigation Co. Pvt. Ltd. vs Commissioner of Income Tax, Bombay, ; , the assessee pur chased.
the 321 assets of another Company for purposes of carrying on pas senger and ferry services, it paid part of the consideration leaving the balance unpaid.
Under the agreement of sale the assessee had to pay interest on the unpaid balance of money.
The assessee claimed deduction of the amount of interest paid by it under the contract of purchase from its income.
The court held that the claim for deduction of amount of interest as revenue expenditure was not admissible.
The Court observed that while considering the question the Court.
should con . sider the nature and ordinary course of business and the object for which the expenditure is in curred.
If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit earning process and not for acquisition of an asset or a right of a perma nent character, the possession of which is a condition for the carrying on of the business, the expenditure may be regarded as revenue expenditure.
But, on the facts of the case, the Court held that the assessee 's claim was not admissible, as the expenditure was related to the acquisi tion of an asset or a right of a permanent character, the possession of which was a condition for carrying the busi ness.
The High Court has relied upon the decision of this Court in R.B. Seth Moolchand Suganchand vs Commissioner of Income Tax, New Delhi, , in rejecting the assessee 's contention.
In Suganchand 's case the assessee was carrying on a mining business, he had paid a sum of Rs. 1,53,800 to acquire lease of certain areas of land bearing mica for a period of 20 years.
Those areas had already been worked for 15 years by other lessees.
The assessee had paid a sum of Rs.3,200 as fee for a licence for prospecting for emerald for a period of one year.
In addition to the fee, the assessee had to pay royalty on the emerald excavated and sold.
The assessee claimed the expenditure of Rs.3,200 paid by it as fee to the Government for prospecting licence as revenue expenditure.
The assessee further claimed that the appropriate part of Rs. 1,53,800 paid by it as lease money was allow able as revenue expenditure.
The Court held that while considering the question in relation to the mining leases an empirical test is that where minerals have to be won, extracted and brought to surface by mining operations, the expenditure incurred for acquiring such a right would be of a capital nature.
But, where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material would be a revenue expenditure.
The Court held that since the payment of tender money was for acquisition of capital asset, the same could not be treated as a revenue expenditure.
As regards the claim relating to the prospecting licence 322 fee of Rs.3,200 the Court held that since the licence was for prospecting only and as the assessee had not started working a mine, the payment was made to the Government with the object of initiating the business.
The Court held that even though the amount of prospecting licence fee was for a period of one year, it did not make any difference as the fee was paid to obtain a licence to investigate, search and find the mineral with the object of conducting the business, extracting ore from the earth necessary for initiating the business.
The facts involved in that case are totally dif ferent from the instant case.
The assessee in the instant case never claimed any deduction with regard to the licence fee or royalty paid by it, instead, the claim relates to the amount spent on the removal of a restriction which obstruct ed the carrying of the business of mining within a particu lar area in respect of which the assessee had already ac quired mining rights.
The payment of Rs.3 lakhs for shifting of the Railway track and Railway Station was not made for initiating the business of mining operations or for acquir ing any right, instead the payment was made to remove ob struction to facilitate the business of mining.
The princi ples laid down in Suganchand 's case do not apply to the instant case.
In British Insulated and Helsby Cables Ltd. vs Atherton, , Lord Cave laid down a test which has almost universely been accepted.
Lord Cave observed: ". when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circum stances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue out to capital." This dictum has been followed and approval by this Court in the cases of Assam Bengal Cement Co. Ltd. (supra); Abdul Kayoom (supra) and Seth Sugancha.nd (supra) and several other decisions of this Court.
But, the test laid down by Lord Cave has been explained in a number of cases which show that the tests for considering the expenditure for the purposes of bringing into existence, as an asset or an advantage for the enduring benefit of a trade is not always true and perhaps Lord Cave himself had in mind that the test of enduring benefit of a trade would be a good test in the absence of special circumstances leading to an opposite conclusion.
Therefore, the test laid down by Lord Cave was not a conclusive one as Lord Cave himself did not regard his test 323 as a conclusive one and he recognised that special circum stances might very well lead to an opposite conclusion.
In Gotan Lime Syndicate vs C. I. T., Rajasthan & Delhi, 18, the assessee which carried on the busi ness of manufacturing lime from limestone, was granted the right to excavate limestone in certain areas under a lease.
Under the lease the assessee had to pay royalty of Rs.96,000 per annum.
The assessee claimed the payment of Rs.96,000 to the Government as a revenue expenditure.
This Court after considering its earlier decision in Abdul Kayoom 's case (supra) and also the decision of Lord Cave in British Insu lated (supra), held that the royalty paid by the assessee has to be allowed as revenue expenditure as it had relation to the raw materials to be excavated and extracted.
The Court observed that the royalty payment including the dead rent had relation to the lime deposits.
The 'Court observed although the assessee did derive an advantage and further even though the advantage lasted at least for a period of five years there was no payment made once for all.
No lump sum payment was ever settled, instead, only an annual royal ty and dead rent was paid.
The Court held that the royalty was not a direct payment for securing an enduring benefit, instead it had relation to the raw materials to be obtained.
In this decision expenditure for securing an advantage which was to last at least for a period of five years was not treated to have enduring benefit.
In M.A. Jabbar vs C.I.T. Andhra Pradesh, Hyderabad; , , the assessee was carrying on the business of supplying lime and sand, and for the purposes of acquiring sand he had obtained a lease of a river bed from the State Government for a period of 11 months.
Under the lease he had to pay large amount of lease money for the grant of an exclusive right to carry away sand within, under or upon the land.
The assessee in proceedings for assessment of incometax claimed deduction with regard to the amount paid as lease money.
The Court held that the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of permanent character instead the expenditure was for a specific object of ena bling the assessee to remove the sand lying on the surface of the land which was stock in trade of the business, there fore, the expenditure was a revenue expenditure.
Whether payments made by an assessee for removal of any restriction or obstacle to its business would be in the nature of capital or revenue expenditure, has been consid ered by courts.
In Commissioner of Inland Revenue vs Carron Company, [1966 69] 45 Tax Cases 13 the assessee carried on the business of iron founders which was incor 325 porated by a Charter granted to it in 1773.
By passage of time many of its features had become archaic and unsuited to modern conditions and the company 's commercial performance was suffering a progressive decline.
The Charter of the company placed restriction on the company 's borrowing powers and it placed restriction on voting rights of certain mem bers.
The company decided to petition for a supplementary Charter providing for the vesting of the management in Board of Directors and for the removal of the limitation on compa ny 's borrowing powers and restrictions on the issue and transfer of shares.
The company 's petition was contested by dissenting share holders in court.
The company settled the litigation under which it had to pay the cost of legal action and buy out the holdings of the dissenting share holders and in pursuance thereof a supplementary Charter was granted.
In assessment proceedings, the company claimed deduction of payments made by it towards the cost of obtain ing the Charter, the amounts paid to the dissenting share holders and expensed in the action.
The Special Commissioner held that the company was entitled to the deductions.
On appeal the House of Lords held that since the object of the new Charter was to remove obstacle to profitable trading, and the engagement of a competent Manager and the removal of restrictions on borrowing facilitated the day to day trading operation of the company, the expenditure was on income account.
The House of Lords considered the test laid down by Lord Cave L.C. in British Insulated Company 's case and held that the payments made by the company, were for the purpose of removing of disability of the company trading operation which prejudiced its operation.
This was achieved without acquisition of any tangible or intangible asset or without creation of any new branch of trading activity.
From a commercial and business point of view nothing in the nature of additional fixed capital was thereby achieved.
The Court pointed out that there is a sharp distinction between the removal of a disability on one hand payment for which is a revenue payment, and the bringing into existence of an advantage, payment for which may be a capital payment.
Since, in the case before the Court, the Company had made payments for removal of disabilities which confined their business under the out of date Charter of 1773, the expendi ture was on revenue account.
In Empire Jute Company vs C.I. T, [1980] 124 ITR I, this Court held that expenditure made by an assessee for the purpose of removing the restriction on the number of working hours with a view to increase its profits, was in the nature of revenue expenditure.
The Court observed that if the advantage consists merely in facilitat ing the assessee 's trading operations of enabling the man agement and conduct of the assessee 's business to be carried on more efficiently or more profitably while leaving 326 he fixed capital untouched, the expenditure would be on revenue account even though the advantage may endure for an indefinite future.
We agree with the view taken in the aforesaid two decisions.
In our opinion where the assessee has an existing right to carry on a business, any expendi ture made by it during the course of business for the pur pose of removal of any restriction or obstruction or disa bility would be on revenue account, provided the expenditure does not acquire any capital asset.
Payments made for remov al of restriction, obstruction or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset.
In the instant case the assessee had been granted mining lease in respect of 4.27 square miles at Jamsar under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire money, licence fee and other charges for securing the right of mining in respect of the entire area of 4.27 square miles including the right to the miner als under the Railway Area.
The High Court has held that on payment of Rs.3 lakhs, the assessee acquired capital asset of an enduring nature.
The High Court failed to appreciate that Clause 3 was only restrictive in nature it did not destroy the assessee 's right to the minerals found under the Railway Area.
The restriction operated as an obstacle to the assessee 's right to carry on business in a profitable man ner.
The assesse paid a sum of Rs.3 lakhs towards the cost of removal of the obstructions which enabled the assessee to carry on its business of mining in an area which had already been leased out to it for that purpose.
There was, there fore, no acquisition of any capital asset.
here is no dis pute that the assessee completed mining operations on the released land (Railway Area) within a period of 2 years, in the circumstances the High Court 's view that the benefit acquired by the assessee on the payment of the disputed amount was a benefit of an enduring nature is not sustain able in law.
As already observed, there may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit may not amount to acquisition of asset.
The facts of each case have to be borne in mind in consider ing the question having regard to the nature of business its requirement and the nature of the advantage in commercial sense.
In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered.
In the instant case existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to 327 the assessee 's business of mining.
The Railway Authorities agreed to shift the Railway establishment to facilitate the assessee to carry on his business in a profitable manner and for the purposes the assessee paid a sum of Rs.3 lakhs towards the cost of shifting the Railway construction.
The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advan tage of an enduring nature.
The Tribunal rightly allowed the expenditure on revenue account.
The High Court in our opin ion failed to appreciate the true nature of the expenditure.
We are, therefore, of the opinion that the High Court committed error in interfering with the findings recorded by the Income Tax Appellate Tribunal.
We, accordingly, allow the appeal, set aside the order of the High Court and re store the order of the Tribunal.
The appellant is entitled to its costs.
N.V.K. Appeal allowed.
|
The appellant assessee carried on the business of mining gypsum.
The predecessor in interest of the assessee acquired a lease from the Maharaja of one of the erstwhile princely State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles in the State.
The lease was liable to be renewed after the expiry of 20 years.
By a deed of assignment dated December 11, 1948 the rights under the lease were assigned to the assessee company, in which the State Government owned 45% shares.
The assessee entered into an agreement with a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5% quality.
Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic convenient and beneficial manner and to treat the same by calcination and other processes.
The lease agreement consisted of several parts and each part contained several clauses.
Clause 3 of part Iii prescribed restrictions on mining operation within 100 yards from any railway, reser voir, canal or other public works.
This clause had been incorporated in the lease to protect the railway track and railway station which was situated within the area demised to the lessee.
The assessee exclusively carried on the mining of gypsum in the entire area demised to it.
The Railway Authorities extended the railway area by laying down fresh track, pro viding for railway siding and further constructed quarters in the leased area without the permission of the assessee.
The assessee company filed a civil suit for ejecting the railways from the encroached area but it failed in the suit.
314 As the assessee company on research and survey found that under the railway area a high quality of gypsum was available, which was required as raw material by the Public Sector Company, all the parties (Public Sector Company, the Railway Board and the assessee company) negotiated the matter, the Railway Board agreeing to shift the railway station, track and yards to an alternative area offered by the assessee, the parties equally bearing the cost of the shifting.
Under the aforesaid agreement, the assessee company paid a sum of Rs.3 lakhs as its share towards the cost of shift ing of the Railway Station and other constructions, and claimed deduction of the said sum for the assessment year 1964 65.
The Income Tax Officer rejected the assessee 's claim on the ground that it was a capital expenditure.
The order was confirmed on appeal by the Appellate Assistant Commissioner.
On appeal by the assessee, the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, but a revenue expend iture.
The Tribunal referred the question to the High Court under section 256 of the Income Tax Act, 1961, on an appli cation by the revenue, which held that since on payment of Rs.3 lakhs to the Railways the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs.3 lakhs was a capital expenditure and it could not be a revenue expenditure.
In the appeal to this Court on the question whether the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act, 1961.
Allowing the appeal, this Court, HELD: 1(a) Where the assessee has an existing right to carry on a business, any expenditure made by it during the course of business for the purpose of removal of any re striction or obstruction or disability would be on revenue account, provided the expenditure does not acquire any capital asset.
[326A] (b) Payments made for removal of restriction, obstruc tion or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset.
[326B] Gotan Lime Syndicate vs C.I.T., Rajasthan & Delhi, ; M.A. Jabbar vs C.I.T., Andhra Pradesh, Hyderabad, [1968] 315 2 SCR 413 and Commissioner of Inland Revenue vs Carron Company, [1966 69] 45 Tax Cases 18, referred.
Empire Jute Company vs C. I. T., ; , affirmed.
In the instant case, the assessee have been granted mining lease in respect of 4.27 square miles under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire area leased out to him.
The payment of Rs.3 lakhs was not made by the assessee for the grant of permission to carry on mining operations within the railway area, instead the payment was made towards the cost of removing the construction which obstructed the mining opera tions.
On the payment made to the Railway Authorities the assessee did not acquire any fresh right to any mineral nor he acquired any capital asset instead, the payment was made by it for shifting the Railway Station and track which operated as hindrance and obstruction to the business of mining in a profitable manner.
[326C E] 2.
There may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit would not amount to acquisition of asset.
The facts of each case have to be borne in mind in considering the question having regard to the nature of business, its requirement and the nature of the advantage in commercial sense.
[326F G] 3(a) The test for considering the expenditure for the purposes of bringing into existence an asset or an advantage for the enduring benefit of a trade is not always true and conclusive.
[327B] 3(b) In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered.
[326H] In the instant case, existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to the assessee 's business of mining.
The Railway Authorities agreed to shift the Railway establish ment to facilitate the assessee to carry on his business in a profitable manner and for that purpose the assessee paid a sum of Rs.3 lakhs.
The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advantage of an enduring nature.
There was therefore.
no acquisition of any capital asset.
[326H; 327A] 316 British Insulated and Helsby.
Cables Ltd. vs Atherton, , explained.
Assam Bengal Cement Co. Ltd. vs The Commissioner of Income Tax, West Bengal, , referred to.
R.B. Seth Moolchand Suganchand vs Commissioner of Income Tax, New Delhi, , distinguished.
The Tribunal rightly allowed the expenditure on revenue account.
The High Court failed to appreciate the true nature of the expenditure.
It committed an error in interfering with the findings recorded by the Income Tax Appellate Tribunal.
[327B C]
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ivil Appeal No. 2675 of 1987.
From the Judgment and Order dated 18.3.1987 of the Central Administrative Tribunal, Allahabad in Registration T.A. No. 999 of 1986.
A. Subba Rao and C.V. Rao for the Appellants.
Harish N. Salve, B.S. Chauhan, Sushil Kumar Jain, Ms. Gitanjali Mohan and B.P. Singh for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Respondents 1 and 2 in this Appeal Dr. Tripa thi and Shri Sinha (hereinafter referred to as the respond ents) were recruited directly to the posts of Income Tax Officers, Class I.
They had made a grievance before the Central Administrative Tribunal, Allahabad that they were not appointed to the next higher post of Assistant Commis sioner, Income Tax according to their turn in the seniority list prepared as per the directions given by this Court in the cases of Bishan Sarup Gupta etc.
vs Union of India & Ors., etc.
; , and Union of India etc.
vs Majji Jangamayya etc.; , As a result, their seniority as Assistant Commissioners was adversely affected and it required correction.
This grievance found favour with the Tribunal which by its impugned decision of 18.3.
1987 quashed the seniority list of Assistant Commis sioners and Commissioners of Income Tax and directed the appellants herein, namely, the Central Board of Direct Taxes and the Union of India to redetermine their seniority in the list of Asstt.
Commissioners, vis avis, the seniority of respondents 3 to 20 who are also direct recruits, and other concerned officers, in the light of the directions and princi 338 ples laid down by this Court in the case of Union of India etc.
vs Majji Jangamayya etc.
(supra).
The dispute with regard to the seniority between the direct recruits and the promotees in the Income Tax Depart ment was set at rest by a Constitution Bench of this Court when it delivered its decision on 16.4.1974 in B.S. Gupta case (supra) which is also known as the lind B.S. Gupta case.
By that decision, this Court accepted as correct the seniority list of Income Tax Officers which was filed before it on February 15, 1973 having been prepared in accordance with the directions given in the judgment dated August 16, 1972 in, what is known as the 1st B.S. Gupta case reported in 1975 Supp.
SCR 491.
On the basis of this seniority list, the Departmental Promotion Committee (hereinafter referred to as the Committee) prepared a selection list in July, 1974 for promotion of Income Tax Officers, Class I to the posts of Assistant Commissioners.
There were 112 vacancies and the Government sent to the Committee 336 names in order of seniority for consideration of the field of choice.
The Committee followed the instructions given for the purpose in the Government Memorandum of 1957 and found 276 Officers fit for the area of choice, assessed the merits of 145 persons in order of seniority, found one officer outstanding, 114 very good and 7 Scheduled Caste Scheduled Tribes Officers good.
This selection was challenged in various High Courts.
Two of the High Courts allowed the petitions in favour of the challenging petitioners and the other High Courts gave interim orders staying the operation of the selection list.
At that stage, the Union of India preferred appeals to this Court.
This Court allowed the appeals and upheld the selec tion list, vide Union of India etc.
vs Majji Jangamayya case (supra) decided on 5.11.1976.
While doing so, this Court explained the observations made in the 1st B.S. Gupta case (supra) at page 506 thereof, which were relied upon by the respondent Officers in that case.
These observations were as follows: "After the fresh seniority list is made in accord ance with the above directions, it will be open to any direct recruit or promotee to point out to the department that in the selections made to the post of Assistant Commis sioner from 1962 onwards, he, being otherwise eligible, was entitled on account of the new seniority given to him, to be considered for promotion to the post of Assistant Commis sioner.
The department may have to consider his case for promotion on his record as on the date when he ought to have been considered for selection but not so considered.
If 339 he is selected, his position will be adjusted in the cadre of the Assistant Commissioners without affecting the promo tee Assistant Commissioners who had been confirmed prior to 22.2.1967 the date on which the Jaisinghani 's case was disposed of by this Court." (Emphasis supplied) While explaining these observations, this Court observed as follows: "The observations . . are that if as a result of the fresh seniority list it is found that any officer was eligible for promotion to the post of Assistant Commissioner on account of his place in the new seniority list, the department might have to consider his case for promotion on his record as on the date when he ought to have been consid ered and if he would be selected his position will be ad justed in the seniority list of Assistant Commissioners.
The object is to see that the position of such a person is not affected in the seniority list of Assistant Commissioners because he is actually promoted later pursuant to the new seniority list, although according to the new seniority list itself he should have been promoted earlier.
The observa tions do not mean that although the Committee can meet for the selection of officers for promotion to the post of Assistant Commissioner only after the seniority list is approved by this Court, the selection would be deemed to be made at the time when a vacancy in the post of Assistant Commissioner occurred and the eligibility of officers for selection will be determined by such deemed date of selec tion.
No employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurs.
Government has the right to keep the vacancy untilled as long as it chooses.
In the present case, such a position does not arise because of the controversy between two groups of officers for these years.
The seniority list which is the basis for the field of choice ,for promotion to the post of Assistant Commissioner was approved by this Court on 16 April, 1974.
Promotions to the post of Assistant Commissioners are on the basis of the selection list prepared by the Committee and are to be made prospectively and not retrospectively." (Emphasis ours) 340 The contention raised by the respondents Dr. Tripathi & Shri Sinha in the present appeal and which as stated above, is accepted by the Tribunal, was that in view of the said observations in 1st B.S. Gupta case (supra) as explained in Majji Jangamayya case (supra) while selecting the Income Tax Officers to the post of Assistant Commissioners, the Commit tee was required to consider the cases of the Income Tax Officer falling within the zone, with reference to their records on the date the Committee met for selection.
They were not to be selected with reference to their records relevant to the year for which their selection was to be made.
Since the Committee followed the latter course, it had, according to the petitioners, violated the directions of this Court given in the case of 1st B.S. Gupta (supra) as explained in the case of Majji Jangamayya (supra).
Unfortu nately, the Tribunal fell for this contention little realis ing that it was the first course canvassed by the contesting respondents and not the latter which would have been con trary to the directions of this Court in both the 1st B.S. Gupta case (supra) as well as Majji Jangamayya case (supra).
As is abundantly clear from the relevant observations repro duced above, what was desired by this Court in both these cases was that if according to the new seniority list there were cases of officers who were entitled to be considered for promotion much before they were considered on the basis of the old seniority list, the Committee should Look into such cases, and should adjust the promotions given right from the year 1962 onwards by considering the cases of such unjustly superseded officers.
Hence the Committee was re quired to consider the vacancies in the posts of Asstt.
Commissioners year wise from 1962 onwards, and if the super seded officers were found fit for such promotion, they were to be given seniority as Asstt.
Commissioners from the year in which they would have been promoted.
It goes without saying that while considering the promotions in the earlier years, the Committee had to consider the record of the officers relevant to those years.
The Committee could not have taken into consideration the record of future years for promotion in the earlier years.
This is also the import of the observations of this Court emphasised by us above.
The Committee did exactly that as is clear from what is stated in paragraphs 12 to 18 of the counter filed on behalf of the appellants in the proceedings before the Tribunal.
There it is pointed out specifically with reference to the contesting respondents Dr. Tripathi and Shri Sinha that the Committee which met from 1977 to 1979 to adjust the promotions as directed by this Court, ' considered in 1978 the case of Dr. Tripathi with respect to his claim which arose in September 1968, February 1969 and September 1969.
He was not selected to the post for the vacancies in September 1968 and February 341 1969 on the basis of comparative merit.
However, he was selected for one of the vacancies in September 1969 and was given deemed promotion with reference to that date.
So also the case of respondent Shri Sinha was considered for the vacancies in September 1968, February 1969 and September 1969.
He was not selected for the vacancies in September 1968 and February 1969, but was selected for one of the vacancies in September 1969.
He was given the deemed date of promotion from that date.
There is no dispute that the seniority of both the respondents as Asstt.
Commissioners has been fixed with reference to the said dates of their deemed promotion.
Mr. Salve, the leaned counsel appearing for both the contesting respondents, however, urged two contentions.
His first and the main contention was that the claims of the said respondents should have been considered on the basis of their records either on the date the new seniority list was prepared, i.e., February 2, 1973 (as.
approved in the lind Gupta case decided on April 16, 1974) or on the date the Committee met in 1978 to consider their claims for the promotional posts.
He contended that this was the direction given by this Court in the 1st Gupta case (supra) and in Majji Jangamayya case (supra).
We have already quoted above the directions given in both the said cases.
It will be obvious from the said directions that the course suggested by Shri Salve, if adopted by the Committee, would have been in clear violation of the said directions.
On the other hand, the Committee had strictly and correctly abided by the said directions.
The second contention urged by Shri Salve was that the selection was not made according to the instructions given in the Government Memorandum of 1957.
According to him, it is the merit cum seniority and not seniority cum merit formula which should have been followed while making the promotions.
We have no record before us to find out what exactly were the comparative merits of the contesting re spondents as against the other candidates.
The respondents in their counter affidavit have stated in so many words that the comparative merits of the respondents were considered, vis a vis the other candidates for each of the occasions.
They were not selected for the vacancies of two earlier occasions and were selected on the third occasion on the basis of the comparative merits.
We also cannot overlook the fact that before the Tribunal the contesting respondents neither advanced any such contention nor requested for the production of the records.
In fact, their case before the Tribunal did not centre rounds this point at all.
Even so, since the records were brought by the appellants in this Court, we had asked Shri Salve to look into them and inform us 342 whether his grievance that the merits of his clients were not given due weight by the Committee had any substance.
No such material was furnished to us.
The result is, the appeal is allowed and the impugned decision of the Tribunal is set aside.
In the circumstances, there will be no order as to costs.
The interim application and the contempt petitions respectively were filed by the contesting respondents for seeking directions to the appellants to appoint them provi sionally as Chief Commissioners of Income Tax and for taking action for the alleged breach of the orders of this Court for not considering their claims to the said posts according to seniority.
In the view we have taken, they have to be dismissed.
We also understand from the appellants that the contesting respondents have since been appointed as Chief Commissioners according to their seniority as determined by the department and approved by us as above.
We have been told by appellants ' counsel that the reversal of the Tribu nal 's decision no longer affects the promotion granted to them.
N.P.V. Appeal al lowed.
|
Respondents Nos. 1 and 2, direct recruit Income Tax Officers, CIasa I, flied a petition before the Central Administrative Tribunal contending that they were not ap pointed to the next higher post of Assistant Commissioner according to their turn in the seniority list prepared as per directions given by the Court in Bishan Sarup Gupta etc.
vs Union of India; , and Union of India Etc.
vs Majji Jangammayya, ; , adversely af fecting their seniority as Assistant Commissioners, and hence it required correction.
The Tribunal quashed the seniority list of Assistant Commissioners and Commissioners of Income Tax and directed the appellants to redetermine their seniority in the cadre of Assistant Commissioners via a via the seniority of re spondents No. 3 to 20, also direct recruits and other con cerned officers, in the light of the directions and princi ples laid down by this Court in Majji Jangamayya 's case.
Hence the appeal by the Department.
was contended on behalf of the respondents that in view of the instructions of this Court in 1st B.S. Gupta case (1975) Supp SCR 491, as explained in Majji Jangamayya 's case, while selecting the Income Tax Officers to the post of Assistant Commissioners, the Departmental Promotion Commit tee was required to consider the cases of the Income Tax Officers falling within the zone with reference to the records, either on the date of seniority list was prepared i.e. February 2, 1972 (as approved by the Court in 2nd Gupta case) or on the date the Committee met for selection, and not with reference to their records relevant to the year for which their selection was to made, but since the Committee had followed the latter course, it had violated the direc tions of this Court.
It was also urged that the selection was not rode according to the instruc 336 tions given in the Government Memorandum of 1957, and that while making the promotions, merit cum seniority and not seniority cummerit formula, should have been followed.
Allowing the appeal, this Court, HELD: 1.1 The dispute with regard to the seniority be tween the direct recruits and the promoters in the Income Tax Department was set at rest by this Court in 2nd B.S. Gupta case wherein this Court accepted as correct the sen iority list of Income Tax Officers, prepared in accordance with the directions given in the 1st B.S. Gupta case.
While upholding the selection list for promotion of Income Tax Officers, Class I to the posts of Assistant Commissioners prepared on the basis of the aforesaid seniority list and the instructions in the Government Memorandum of 1957, in Majji Jangamayya 's case, this Court explained the observa tions made in the 1st B.S. Gupta 's case.
[338B C; F] 1.2 What was desired by this Court in the 1st B.S. Gupta case and Majji Jangamayya case was that if according to the new seniority list there were cases of officers who were entitled to be considered for promotion much before they were considered on the basis of the old seniority list, the Committee should look into such cases, and should adjust the promotion given right from the year 1962 onwards by consid ering the cases of such unjustly superseded officers.
Hence the Committee was required to consider the vacancies in the posts of Asstt.
Commissioners year wise from 1962 onwards and if the superseded officers were found fit for such promotion, they were to be given seniority as Asstt.
Commis sioners from the year in which they would have been promot ed.
Thus, while considering the promotions in the earlier years, the Committee had to consider the record of the officers relevant to those years.
The Committee could not have taken into consideration the record of future years for promotion in the earlier years.
This is the import of the observations of this Court.
[340D F; B] 1.3 The Committee, which met from 1977 to 1979 to adjust the promotions as directed by this Court, considered in 1978 the cases of Respondents No. 1 and 2 with reference to their claims which arose in September 1968, February 1969 and September 1969.
They were not selected for the vacancies in September 1968 and February 1969, on the basis of compara tive merit.
However, they were selected for the vacancies in September 1969 and given deemed promotion with reference to that date and their seniority as Assistant Commissioners fixed as on that date.
The Committee has strictly and cor rectly abided by the directions in both the cases.
[340G H] 337 1.4 The comparative merits of the two respondents were considered on each of the three occasions and they were selected only on the third occasion.
They have since been appointed as Chief Commissioners according to their seniori ty as determined by the department and approved by this Court.
[342C] Bishan Sarup Gupta vs Union of India and Ors., [1975] Supp.
SCR 491; Union of India etc.
vs Majji Jangamayya etc.
; , explained and Bishan Sarup Gupta etc.
vs Union of India & Ors.
Etc., ; , re ferred to.
|
ivil Appeal No. 1996 of 1990.
From the Judgment and Order dated 14.9.
1989 of the Delhi High Court in Civil Writ No. 2038 of 1988.
T.S. Krishnamurthy Ayer, T.V.S.N. Chari and C.V. Rao for the Appellants.
Ashok Grover and V.N. Kaura for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
This appeal raises some questions which are important both for the Delhi Administration as well as for their lessees of land.
Shortly stated, the questions in volved are: (a) what constitutes an application for permis sion to convert the user of the land? (b) from which date the conversion charges are leviable? and (c) from which date interest is chargeable on the conversion charges? 2.
The land involved in the present ease is at 20, Barakhamba Road, New Delhi and admeasures about 0,956 acre.
It was leased by 304 the Governor General in Council to one Smt.
Rama Bai on November 17, 1931.
The regular lease deed was drawn up in 1938.
It was a perpetual lease given on a premium of Rs.8,000 at the annual rent of Rs.400.
Rama Bai con structed a residential building on the land.
On May 20, 1938, Smt.
Rama Bai assigned the lease in favour of Smt.
Leelawati who died on November 6, 1969.
The interest in the lease devolved on respondents 1 4 and one Hans Raj Gupta and their names were mutated in the record of rights as is evidenced by the Government Memo of November 21, 1977.
Hans Raj Gupta died on July 31, 1985.
Respondents 5 11 are his heirs and legal representatives.
It appears that Hans Raj Gupta had left a will.
It is the subject matter of probate proceedings in Suit No. 62 of 1985 which is being contested.
If the will is probated then share of the late Hans Raj Gupta will devolve upon respondents 6 9; otherwise, it will devolve on all his heirs, viz., respondents 5 11.
For the purpose of the questions to be answered in this appeal, we are not much concerned with the revolution of property after the death of late Hans Raj Gupta.
In September 1962, the Delhi Development Authority prepared a Master Plan for Delhi under Section 7 of the Delhi Development Act, 1957 (hereinafter referred to as the "Act").
Before the names of respondents 1 4 and the late Hans Raj Gupta were mutated in the property register on November 21, 1977, a letter was written on April 25, 1977 by one of the lessees to be precise, by the first respondent, through an advocate, to the Land & Development Officer which read as follows: ". .
My client Shri Dev Raj Gupta son of late Smt.
Leela Gupta proposes to construct a multi storeyed building on the above mentioned plot.
Please let me know the charges, if any, payable for conversion of the land use from residen tial to commercial for constructing a multi storeyed commer cial building on the said plot after demolishing the exist ing bungalow constructed on the above said plot.
Your early response in the matter shall highly be appreciated.
Thanking you, We do not have on record reply, if any, sent to this letter.
But it 305 appears that there was some letter of the same date, viz., April 25, 1977 addressed by "the heirs and executors" of the estate of late Smt.
Leelawati Gupta, C/o Shri Prem Shankar, Advocate, i.e., the very same advocate who had written the letter earlier alluded to on behalf of the first respondent, and a reply was given by the office of the Land & Develop ment Officer on July 29, 1977 to this letter of the "heirs and executors etc." stating therein that their letter was receiving attention.
What that letter was has not come on record.
The only development thereafter was, as stated earlier, the Government Memo of November 21, 1977 communi cating that the names of respondents 1 4 and of the late Hans Raj Gupta were mutated in the property register against the leased land.
It may be mentioned here that this Govern ment Memo was addressed to the late Hans Raj Gupta and respondents 1 4 care of the said Advocate, Shri Prem Shan kar.
We are informed at the Bar that the request for such mutation was made on October 12, 1972 on the basis of a partition deed of December 15, 1970 after the death of Smt.
Leelawati on November 26, 1969.
What is important to note from the developments so far, as tar as the issues involved in this appeal are concerned, is that no application for conversion of the land was made on behalf of the lessees of the land.
On February 15, 1978, the late Hans Raj Gupta, for himself and "Dev Raj Gupta and others", wrote a letter to the Land & Development Officer stating therein as follows: "Under the Master Plan and the Zonal Plan the above plot now residential can be developed for the construction of a Commercial building.
Please let me know your terms in respect thereof together with commercialisation charges that will have to be paid by us.
The plans have already been submitted to the N.D.M.C. after their approval by the Urban Land Art Commis sioner.
Yours faithfully, S/ d Hans Raj Gupta for Hans Raj Gupta, Dev Raj Gupta and Others" 306 We have then on record a letter dated March 1, 1980 by the Assistant Settlement Commissioner to the lessees as follows: S/Shri Hans Raj Gupta, Dev Raj Gupta, Prem Raj Gupta Pardeep Kumar Gupta, C/o Shri Hans Raj Gupta, 3 Ratendon Road, New Delhi.
Sub: Premises situated on Plot No. 5, Block No. 205 known as 20 Barakhamba Road, New Delhi.
Dear Sir, I am to say that the applications in respect of the above mentioned premises received so far from different persons (some of them are not co lessees) to intimate con version charges for the construction of Multi stroyed Commercial building and your intention to sell the property to M/s. Central Investment (P) Ltd. and the United Towers India (Pvt.) Ltd. but rejection of the same by *.he
Compe tent authority under Urban (Ceiling & Regulation) Act, 1976 have created some doubts about that ownership.
It has there fore been decided that a fresh application for the permis sion to construct the Multi storeyed Building duly signed by all the co lessees be asked for.
You arc therefore requested to make an application in the prescribed proforma for the permission to construct the Multi storeyed Commercial building duly signed by all the co lessees.
Yours faithfully, S/d Encl.
As above.
(R.L. Gupta) Asstt.
Settlement Commissioner".
On June 3, 1980, a reminder was sent by the Government to the late Hans Raj Gupta and respondents 1 4 which reads as follows: " . .
I am to refer to this Office Letter No. LI 9/205(5)/ 307 80/197 dated 1.3.1980 on the above subject and to say that no reply thereto has to far been.
(sic.) In case no reply is received from you within 15 days from the said date of receipt on this letter, then it will be presumed that you are not interested for the permis sion to construct the multi storeyed Commercial Building and the case will be treated as closed . . " To this reminder, the late Hans Raj Gupta replied that the letter of March 1, 1980 sent by the Government appeared to have been lost in transit and did not reach their hands and requested for a duplicate of the same to enable them to take necessary steps.
The Government by its letter of August 11, 1980 sent a copy of its letter of March 1, 1980 and along with it also sent to the late Hans Raj Gupta and others a show cause notice dated May 31, 1980 which had also been received back by the Government undelivered.
Thereaf ter, on February 27, 1981, the late Hans Raj Gupta, and one Raj Kumar Gupta as a constituted Attorney for respondents 1 4, sent an application in the prescribed form.
In the accompanying letter of the same date, if was mentioned that the application was sent with reference to the Land & Devel opment Officer 's letter dated March 1, 1980 and the discus sions held in his office on February 9, 1981 for permission to construct a multi storeyed building.
All that is neces sary for us to note from the contents of the application form is firstly that it was mentioned there against the relevant query that the plan for constructing commercial building was sanctioned on January 21, 1981 by the New Delhi Municipal Committee and that exemption application under Section 20(1) of the Urban Land (Ceiling & Regulation) Act, 1976 was being processed.
On January 12, 1984, the Govern ment intimated to the parties that with reference to their letter of February 27, 1981 seeking permission for construc tion of multi storeyed commercial building, the lessor, i.e., the Government was willing to consider their said request provided they were willing to comply with the terms and conditions mentioned therein full in advance.
The terms and conditions mentioned in this communication included, among other things, the payment of additional premium of Rs.1,77,31,548 in jumpsum and payment of interest on the additional premium at 10 per cent per annum from 27th May, 1981 to 14th July, 1983 being Rs.37,84,349.55 and from 15th July, 1983 to the date of payment, at Rs. 1,47,762.90 per month.
The other terms and conditions imposed by the said letter are not in dispute and, therefore, they need not be reproduced here.
308 6.
On receipt of this letter, the late Hans Raj Gupta and other lessees made a representation on March 31, 1984 to the Works & Housing Minister of the Government of India requesting reconsideration of the terms and conditions imposed in the Government 's letter of permission of January 12, 1984.
It appears that thereafter there was a correspond ence between the parties which finally culminated in the Government 's letter of June 12, 1987 which virtually reject ed the representations of the lessees.
Further representa tions were made thereafter for reconsideration of the terms and conditions offered by the Government for conversion of the use of the leased land but it appears that they were not replied to.
The result was that the lessees approached the High Court by a writ petition challenging the appellant 's letter dated June 12, 1987 reiterating the terms and condi tions which were intimated earlier by the letter of January 12, 1984.
The main challenge in the petition was to the base year for the calculation of the charges for conversion of the land from the residential to the commercial purpose.
It was the contention of the petitioners that since they had applied to the respondents for permission to convert the user on February 15, 1978, they were liable to pay charges calculated with reference to the said date and not as the respondents had done with reference to May 25,1981.
Their second contention was that for the same reason no charges for the misuse of the land could be levied after February 15, 1978 and their third contention was that no interest could be charged on the alleged additional premium which was calculated by taking into consideration May 25, 1981 as the base date.
The High Court accepted all the said three con tentions by holding that the date with reference to which the conversion charges had to be calculated was February 15, 1978 when according to the court the respondents had duly applied for conversion of the user.
The High Court also held that in fact there was no need to make any such application for conversion after September 1962 when the Master Plan was prepared by the Delhi Development Authority declaring the region in which the leased land was situate as a commercial zone.
According to the court, there was an automatic and statutory conversion of the use of the land from residential to commercial purpose and hence there was no question of either payment of conversion charges or the misuse charges.
In this view of the matter the court held that the demand which had been made by the appellants for conversion charges calculated on the basis of the rate prevalent in April, 1981 instead of the rate prevalent on February 15, 1978 was not in accordance with law and the respondents were not obliged to make the payment pursuant to an invalid demand.
The High Court, therefore, quashed the 309 demand for conversion charges contained in the appellants letters dated January 12, 1984 and June 12, 1987 and direct ed the appellants to recompute the additional premium and other charges within a period of six months in accordance with law and in accordance with the observations made by it.
It is this decision which is challenged in this appeal.
While narrating the facts we have referred to the alleged application made by the respondents or on their behalf on April 25, 1977 and February 15, 1978.
Since the respondents do not contend that their alleged application of April 25, 1977 was an application for conversion of the user of the land, it is not necessary for us to deal with the same.
However, since it is contended vehemently on their behalf that the application of February 15, 1978 was a proper application for conversion of the user of the land and the High Court has also accepted it as such, it is necessary to deal with the same.
The contents of the said application have been reproducted above.
In the first in stance, this application was sent by the late Hans Raj Gupta for himself and for "Dev Raj Gupta and others".
The late Hans Raj Gupta did not sign it for Dev Raj Gupta and others as the holder of the power of attorney from them.
Nor did he make clear who "the said others were".
The lessees of the property at that time were Dev Raj Gupta Prem Raj Gupta and Pradeep Kumar Gupta in addition to the late Hans Raj Gupta.
Neither the said letter was signed by Dev Raj Gupta Prem Raj Gupta and Pradeep Kumar Gupta nor was it stated any where in the letter that they had authorised the late Hans Raj Gupta to seek permission on their behalf.
As far as the contents of the letter are concerned, they are self explanatory.
All that the late Hans Raj Gupta wanted to know from the Land and Development Officer were the terms and conditions for the construction of a commercial building on the land and the charges that would have to be paid for the same.
This can hardly be called an application for permission to con struct a commercial building on the land.
It is no more than an enquiry.
We are, therefore, unable to appreciate the contention that this letter constituted an application for permission to use the land for commercial purposes.
It is for this reason that we are unable to agree with the High Court 's finding that this letter was an application for the conversion of the user of the land.
It is immaterial in this connection whether any regular form of application was prepared and was available for use at the relevant time.
Even assuming that such a form was prescribed for the first time on June 15, 1978, the letter of February 15, 1978 could hardly be described as an application signed by the lessees, meaning thereby, all the lessees for permission to convert the user of the land.
310 The absence of a prescribed from does not made the letter the required application.
The least that is expected in an application for the purpose is a request by all the lesseess to permit the change of the user of the land showing readi ness and willingness to abide by the terms and conditions for such conversion of the user.
The letter in question, on the other hand, did nothing more than make an enquiry sug gesting that the application for the change of the would be made after the terms and conditions including the charges for the same are known.
We are, therefore, satisfied that the letter of February 15, 1978 was not an application made for the change of the user of the land.
It is for this very reason that we are of the view that it was for the first time on February 27, 1981 that a proper application was made for the purpose.
As has been pointed out hereinabove, after the letter of February 15, 1978 addressed by the late Hans Raj Gupta and others to the authority, we have on record only the letter of March 1, 1980 addressed by the authority to Hans Raj Gupta and others pointing out that applications in respect of the land were received by him from different persons some of whom were not even co lessees, to intimate conversion charges for the construction of "multi storeyed commercial building".
The letter also referred to their intention to sell the property to M/s. Central Investment Private Limited and the United Towers India Private Limited".
The authority also referred to the reflection of the same by the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 stated that the same had created some doubts about the ownership of the land.
It was, therefore, necessary accord ing to the authority that a fresh application for the per mission to construct the multi storeyed building" duly signed by all the co lessees" in the prescribed form should be sent.
It is obvious from this letter that there was some correspondence between the parties between February 15, 1978 and March 1, 1980 which has not come on record.
The letter of March 1, 1980 is obviously not a reply sent by the au thority to the late Hans Raj Gupta 's letter of February 15, 1978, for the latter does not refer to the construction of a multi storeyed building or the intended sale of the property to a third party.
The letter is also addressed not to the late Hans Raj Gupta and Dev Rai Gupta and others, but to the late Hans Raj Gupta, Dev Raj Gupta, Prem Raj Gupta and Pradeep Kumar Gupta.
It is also clear from the authority 's letter that different persons were seeking permission for change of the user of the land and some of them were not even the co lessees of the land.
The situation which ob tained till March 1, 1980 was, therefore, that there was no firm application by the authorised person or persons for conversion of the user of the land and it 311 is for this reason that the authority had asked the lessees to send the application in the prescribed form duly signed by all the co lessees.
There was no reply to this letter of March 1, 1980 and hence a reminder was sent by the authority on June 3, 1980 warning the lessees that in case no reply was received from them within 15 days, the matter would be treated as closed.
It is pursuant to this reminder that on February 27, 1981 a letter accompanied by an application in the prescribed form was sent, and both the letter as well as the prescribed form were duly signed for the first time by all the co lessees.
The contents of the accompanying letter make it clear that even the lessees treated this application as the first duly made application for the purpose.
It may also be mentioned here that, as has been stated in the application, the plans for the construction of the commer cial building were sanctioned only on January 21, 1981 and the,exemption application made to the competent authority under Section 20 (1) of the Act was even then still under process.
It is in response to this application that the sanction was given by the authority on January 12, 1984 to convert the user of the land.
We are, in the circumstances, of the view that it was only on February 27, 1981 that an application for the change of the user of the land was made by or on behalf of the respondent lessees of the land.
There is no explanation given by the appellants as to why the application made by the respondents of February 27, 1981 was not replied to till January 12, 1984.
Hence in the absence of anything else on records, it will have to be held that the date with reference to which conversion charges have to be counted is 27th February, 1981.
The authority has calculated additional premium with reference to May 27, 1981 on the footing that the outer limit for granting permission was three months from the date of the receipt of the application.
There is no justification for the authority to hold thus, for they are expected to process the application as early as possible and not to wait till the end of three months.
Unless there are valid reasons for them to do so or the delay is caused on account of an omission or commission on the part of the applicants, it is not proper to take the end of the three months as the date with reference to which the conversion charges should be calculated.
We are, however, informed that in the present case it makes no difference whether the charges are calculated with reference to 27th February 1981 or May 27, 1981.
Hence, the difference in dates in immaterial for our purpose.
312 11.
The High Court is further not right in holding that there was an automatic or a statutory conversion of the user of the land because in the Master Plan the land in question fell in the area reserved for commercial use.
The High Court failed to appreciate that the charge of user of the land permitted by the Plan was only enabling in nature.
It lifted the restriction which was otherwise there for using the land for commercial purpose.
The land has to be used as per the agreement between the contracting parties, and no change of the user can be made contrary to the agreement even if the Plan permits such user.
The Plan helps the parties to change the user, if the parties mutually agree to do so.
It does not permit the occupant to change the user unilaterally.
It is not, therefore, correct to say that no permission of the landlord was reeded to change the user of the land.
In the view we have taken, we direct that the addi tional premium should be calculated by the appellants on the basis of the rate which was prevalent as on February 27, 1981 which is the date of the application made for the change of the user.
The interest should be charged on such additional premium w.e.f. 12th April, 1984 since a period of three months from the date of notice, viz., January 12, 1984 was available to the respondent lessees to make the payment of the additional premium.
Taking into consideration the facts and circumstances of the present case, the appellants should be given the facility to make the payment in three equal annual installments and the interest should be charged on such deferred payment at not more than 14 per cent per annum.
The respondent lessees would, however, not be enti tled to convert the present user of the land into the com mercial user until and unless the last of the amount of the additional premium together with the interest thereon is paid.
The respondents will further be liable to pay the misuse charges mentioned at items 6 and 7 of the ,notice of 12.1.1984 till 12th April, 1984 from which date, they would be paying the conversion charges as above.
The appellants will give the respondents the facility to pay the rest of the amounts, i.e., the amounts other than the conversion charges in twenty four monthly installments with interest at no more than 10 per cent annum.
The decision of the High Court is set aside and the appeal is allowed accordingly with no order as to costs.
G.N. Appeal al lowed.
|
The land in this case was leased by the Government to one R in 1931 and a regular lease deed was drawn in 1938.
It was a perpetual lease.
The lessee constructed a residential building on the land, and assigned the lease in favour of one L.
On the death of L, the interest in the lease devolved on the respondents.
Respondent No. 1 sent a letter through his Advocate to the Land & Development Officer, stating that he proposed to construct a multi storeyed building demolish ing the bungalow and demanding to know the charges for conversion of the land use from residential to commercial purposes.
The Land & Development Officer replied that the letter was receiving attention.
Actually the names of the respondents were mutated in the property register after the exchange of the above letters.
However, no application for conversion of the land user was made on behalf of the les sees of the land.
Again in 1978 the parties sent a letter to the Land & Development Officer demanding to know the terms for con struction of a commercial building on the lease land and the charges to be paid for the same.
The Assistant Settlement Commissioner sent a reply requesting that a formal applica tion be made in the prescribed proforma for permission to construct multi storeyed commercial building duly signed by all the co lessees.
In 1980 a reminder was sent to the parties.
Only thereafter the parties filed an application in the prescribed form.
In 1984, the Government intimated the parties that it was willing to comply with the request, provided the parties were willing to abide by certain terms and conditions in advance.
The parties made a representation to the Works & Housing Minis 301 ter requesting for reconsideration of the terms and condi tions.
After a good deal of correspondence the Government rejected the representation.
Thereafter the parties ap proached the High Court by way of a Writ Petition challeng ing the terms and conditions imposed by the Government.
It was contended that since they applied for permission to convert the user of land on 15.2.1978, they were liable to pay charges calculated with reference to that date only; that no charges for misuse of the land could be levied after 15.2.1978; that no interest could be charged on the alleged additional premium which was calculated by taking into consideration May 25, 1981 as the base date.
Accepting the contentions, the High Court held that there was no need to make any application for conversion after 1962 when the Master Plan was prepared by the Delhi Development Authority declaring the region as a commercial zone and that the conversion was automatic and statutory.
The High Court held that the Respondents were not,obliged to make the payment of conversion charges calculated at rates prevalent in April, 1984 instead of the rates obtaining in February, 1978.
It directed the Government to recompute the additional premium and other charges.
Aggrieved by the High Court Judgment, the Government preferred the present appeal.
The same contentions as were raised in the High Court were advanced before this Court, by both the parties.
Allowing the appeal, this Court, HELD: 1.
The land has to be used as per the agreement between the contracting parties, and no change of the user can be made contrary to the agreement even if the Master Plan permits such user.
The Plan helps the parties to change the user, if the parties mutually agree to do so.
It does not permit the occupant to change the user unilaterally.
It is not, therefore, correct to say that no permission of the landlord was needed to change the user of the land.
The High Court is not right in holding that there was an automatic or a statutory conversion of the user of the land because in the Plan the land in question fell in the area reserved for commercial use.
The High Court failed to appreciate that the change of user of the land permitted by the Plan was only enabling in nature.
It lifted the restriction which was otherwise there for using the land for commercial purpose.
[312B C & A] 2.
All that the parties wanted to know from the Land & Development Officer were the terms and conditions for the construction of a commercial building on the land and the charges to be paid for the same.
This can hardly be called an application for permission to con 302 struct a commercial building on the land.
It is no more than an enquiry.
It is immaterial in this connection whether any regular form of application was prepared and was available for use at the relevant time.
Even assuming that such a form was prescribed for the first time on June 15, 1978, the letter of February 15, 1978 could hardly be described as an application signed by the lessees meaning thereby all the lessees for permission to convert the user of the land.
The absence of a prescribed form does not make the letter the required application.
The least that is expected in an application for the purpose is a request by all the lessees to permit the change of the user of the land showing readi ness and willingness to abide by the terms and conditions for such conversion or the user.
The letter in question, on the other hand, did nothing more than make an enquiry sug gesting that the application for the change of the user would be made after the terms and conditions including the charges for the same are known.
Thus, the letter of February 15, 1978 was not an application made for the change of the user of the land.
[309F H; 310A B] 3.
It is clear from the authority 's letter dated March 1, 1980 that different persons were seeking permission for change of the user of the land and some of them were not even the co lessees of the land.
Since there was no firm application by the authorised person or persons for conver sion of the user of the land the authority had asked the lessees to sent the application in the prescribed form duly signed by all the co lessees.
There was no reply to this letter of March 1, 1980 and hence a reminder was sent by the authority on June 3, 1980 warning the lessees that in case no reply was received from them within 15 days, the matter would be treated as closed.
It is pursuant to this reminder that on February 27, 1981 a letter accompanied by an appli cation in the prescribed form was sent, and both the letter as well as the prescribed form were duly signed for the first time by all the co lessees.
The contents of the accom panying letter make it clear that even the lessees treated this application as the first duly made application for the purpose.
As has been stated in the application, the plans for the construction of the commercial building were sanc tioned only on January 21, 1981 and the exemption applica tion made to the competent authority under Section 20(1) of the Delhi Development Act, 1957 was even then still under process.
It is in response to this application that the sanction was given by the authority on January 12, 1984 to convert the user of the land.
Thus, it was only on February 27, 1981 that an application for the change of the user of the land was made by or on behalf of the respondent lessees of the land.
[310G H; 311A D] 4.
There is no explanation given by the appellants as to why the 303 application made by the respondents on February 27, 1981 was not replied to till January 12, 1984.
Hence in the absence of anything else on record, it will have to be taken that the date with reference to which conversion charges have to be counted is 27th February, 1981.
[311E] 5.
The additional premium should be calculated by the appellants on the basis of the rate which was prevalent as on February 27, 1981 which is the date of the application made for the change of the user.
The interest should be charged on such additional premium w.e.f. 12th April, 1984 since a period of three months from the date of notice, viz., January 12, 1984 was available to the respondent lessees to make the payment of the additional premium.
The respondent lessees would not be entitled to convert the present user of the land into the commercial user uniess and until the last of the three annual installments of the addi tional premium together with the interest thereon is paid.
[312C E] 6.
The respondents will further be liable to pay the misuse charges mentioned at items 6 and 7 of the notice of 12.1.1984 till 12th April, 1984 from which date, they would be paying the conversion charges.
[312F]
|
ivil Appeal No. 4979 of 1990.
From the Judgment and Order dated 25.8.1989 of the Bombay High Court in W.P. No. 6058 of 1986.
468 V.M.
Tarkunde, D.R. Poddar and V.B. Joshi for the Appellant.
K.P. Parasaran (N.P.), Rama Subramaniam, A.K. Ganguli, R.P. Bhat, K. Swamy and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
This is an appeal from the judgment of a learned Single judge of the Bombay High Court dismissing Writ Petition No. 6058 of 1986 filed by the appellant on the Appellate Side of that Court.
The appellant and respondent No. 1 are companies incorporated under the Indian Companies Act.
ReSpOndent No. 2 is a Cooperative Society registered under the Maharashtra Cooperative Societies Act, 1961 (hereinafter referred to as "the said Act").
Appellant is a member of respondent No. 2 Cooperative Society and has its office premises in the building owned by respondent No. 2.
Some time prior to September 10, 1985 the appellant entered into an agreement to sell the said office premises to respondent No. 1 subject to the approval of respondent No. 2.
The terms of the said agreement were incorporated in a letter dated September 10, 1985 addressed by the appellant to the Vice Chairman and the president of respondent No. 1: It was set out in the said letter that the price for the said premises was to be calcu lated at the rate of Rs. 2,000 per square feet.
The letter further stated: "We are agreeable to sell you the same subject to approval of the Cooperative Society owning the building.
We shall provide you vacant possession and hand over the same free of all incumbrances only after we are able to obtain alternate accommodation for our company . . ".
A sum of Rs. 50,000 was paid by a demand draft by re spondent No. 1 to the appellant under the said agreement.
By a letter dated November 15, 1985 the appellant sought the approval of respondent No. 2 to the transfer of the said office premises to respondent No. 1.
By its letter dated November 18, 1985 addressed to the appellant, respondent No. 2 stated that the appellant was requested to offer to trans fer of the said.
premises to the existing members of the society as a first preference as per the established prac tice of the society.
It further stated that in case the existing members of respondent No. 2 were not willing to buy the said premises, the premises could be given for trans 469 fer to an outside transferee.
By its letter dated November 22, 1985, addressed to respondent No. 1 the appellant point ed out that respondent No. 2 had declined to grant permis sion for transfer unless the premises were first offered to the existing members of the society by Way of a first pref erence.
The said letter then stated that it was not possible to continue negotiations any further.
Along with the said letter the demand draft of Rs.50,000 referred to above was returned by the appellant.
Without any further correspond ence respondent No. 1 filed a dispute in the Cooperative Court No. 17 Bombay against the appellant and respondent No. 1 by statement of claim which can be conveniently referred to as a plaint.
In the plaint respondent No. 1 inter alia stated that on the promises and representations made by the appellant to respondent No. 1 it had paid a sum of Rs.2,60,000 to one I.M. Choksey representing himself as the Chairman of the appellant and one section Ramakrishnan, claiming to be the repre sentative of his wife who was a Director of the appellant.
Respondent No. 1 further claimed that it had paid a further sum of Rs.40,000 in cash to the appellant without taking a .receipt.
Respondent No. 1 urged that but for the assur ance given by Choksey and Ramakrishnan acting on behalf of the appellant and one Col.
G.D. Hadep, acting on behalf of respondent No. 2 that the appellant would be in a position to transfer the said premises by the end of November 1985 and respondent No. 2 would not object to such transfer, respondent No. 1 would not have paid such a huge amount to the appellant.
Respondent No. 1 further stated that the appellant and respondent No. 2 had promised respondent No. 1 that they would complete the formalities of transfer of the said premises within a few days and there would be no objec tion or obstruction whatever in the said transfer.
Respond ent No. 1 went on to say that it was given to understand that the appellant and respondent No. 2 were conspiring to sell the said premises to a third party for a larger amount.
Respondent No. 1 was ready and willing to perform its part of the contract and prayed for an order for specific per formance of the contract.
The relevant portion of paragraph 10 of the plaint, which deals with jurisdiction, sets out that respondent No. 2 is a cooperative society and is vital ly interested in the transfer and sale of the said premises and to ensure that the transfer is done under the provisions of its bye laws, the said Act and the rules.
Respondent No. 2 had taken active part in the transaction entered into be tween respondent No. 1 and the appellant who _is a member of respondent No. 2, and that respondent No. 1 was claiming his rights through the appellant who was a member and hence, the subject matter of the dispute fell within the ambit of section 470 91 of the said Act.
Respondent No. 1 prayed for a declara tion that the aforesaid dispute was a dispute falling under section 91 of the said Act and prayed that the appellant and respondent No. 2 should be directed to specifically perform the agreement recorded in the letter of September 10, 1985 and transfer the said premises to respondent No. 1.
The rest of the prayers in the plaint are immaterial for our pur poses.
Pursuant to certain orders made by the Bombay High Court the Cooperative Court framed an issue as to whether it had jurisdiction to entertain the dispute.
The Court recorded evidence led by respondent No. 1 off this issue and dis missed the dispute for want of jurisdiction.
This order was set aside by the Maharashtra Cooperative Appellate Court, Bombay, by its order dated September 9, 1986.
The appellant herein filed a writ petition in the High Court to challenge the said order.
The learned Single Judge who heard the said writ petition dismissed the same and held that the case was governed by the provisions of section 91 of the said Act.
; It is this decision which is sought to be challenged before us by the appellant.
It is submitted by Mr. Tarkunde, learned counsel for the appellant that the agreement to sell the said premises with which we are concerned, was entered into between the appel lant, a member of respondent No. 2, a Cooperative Society and respondent No. 1, a nonmember.
The said agreement was for transfer of premises belonging to the appellant to respondent No. 1, a non member, in a building owned by respondent No. 2, a cooperative society.
The claim in the dispute was for obtaining the specific performance of the said agreement and the prayer for directing respondent No. 2 to approve the said agreement was in the nature of an ancil lary prayer to complete the relief.
The main relief was for specific performance of the said agreement.
It was submitted by him that such a dispute cannot be said to be a dispute "touching the management or business of a society" as con templated in sub section (1) of section 91 of the said Act nor can it be said that respondent No. 1, a non member was making a claim against respondent No. 2 society through a member, namely, the appellant.
The main relief sought was for specific performance of an agreement by a member to sell the premises in the society building to a non member and such a claim can never be said to be made against the socie ty through a member.
In order to appreciate the submissions made, it is desirable to set out the material portion of Section 91 of the said Act which runs as follows: 471 "91(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the con struction, elections of the office beares.
|
The appellant company, a member of Cooperative Society, respondent No. 2, was having its office premises in a build ing owned by respondent No. 2.
It entered into an agreement to sell the said premises to respondent No. 1, a non member subject to the approval of the Cooperative Society.
The Cooperative Society declined to grant permission for trans fer of the premises.
Respondent No. 1 filed a dispute against the appellant and respondent No. 2 Cooperative Society in the Cooperative Court under section 91 of the Maharashtra Cooperative Societies Act, 1960 praying for a decree of specific performance of the contract and a direc tion to the Cooperative Society to approve the said agree ment.
The Cooperative Court dismissed the dispute for want of jurisdiction.
On appeal by respondent No. 1, the Maharashtra Cooperative Appellate Court set aside the order of the Cooperative Court.
Against the order of the Cooperative Appellate Court, the appellant filed a writ petition in the High Court which was dismissed by holding that the dispute was governed by Section 91 of the Act.
In the appeal to this Court against the Judgment of the High Court, it was contended on behalf of the appellant that the dispute between the parties was not governed by Section 91 since it was neither a dispute "touching the business of the society" nor was it a dispute between a person claiming through a member against the society.
467 Allowing the appeal and setting aside the judgment of the High Court, this Court, HELD: 1.
Before a dispute can be referred to a Coopera tive Court under the provision of section 91(1) of the said Act it is not only essential that the dispute should be of a kind described in sub section (1) of section 91 but it is also essential that the parties to the said dispute must belong to any of the categories specified in clauses (a) to (e) of subsection (1) of the said section.
[473B] 2.
In the instant case the main claim of Respondent No. 1 a nonmember, was for a decree for specific performance of the agreement.
The prayer for an order that respondent No. 2 Society should be directed to give their approval to the said agreement was merely an ancillary prayer made with a view to complete the relief of specific performance.
The main claim to have the agreement specifically performed cannot be said to be a claim made by a person (non member) against the Society.
The claim against the society cannot be said to be made through a member, the appellant, because it is only when a decree for performance of the said agreement is passed against the appellant, that it could be contended that the other relief namely, for an order directing re spondent No. 2 to approve the said agreement is claimed against the society through a member.
Consequently, the dispute cannot be said to fall within the scope of section 91(1)(b) of the Act.
Therefore, the High Court committed an error in coming to the conclusion that both the parties to the dispute belonged to the categories covered under section 91(1)(b) of the Act.
[473E H; 474A] Deccan Merchants Cooperative Bank Ltd. vs M/s Dalichand Jugraj Jain and Ors., [1969] 1 S.C.R. 887; M/s Leong and Anr.
vs Smt.
Jinabhai G. Gulrajami and Ors., A.I.R. 1981 Bom.
244 and Sanwarmal Kejriwal vs Vishwa Cooperative Hous ing Society Ltd. and Ors., [1990] 2 SCC 288, distinguished.
O.N. Bhatnagar vs Smt.
Rukibai Narsindas & Ors., ; , referred to.
|
ivil Appeal No. 330 of 1976.
From the Judgment and Order dated 13.3.1972 of the Allahabad High Court in ITR No. 457 of 1968.
V. Gauri Shankar, section Rajappa and Ms. A. Subhashini for the petitioner.
Harish N. Salve, A.T. Patra, Ms. Bina Gupta, Ms. Monika Mohil, Rajiv Shakhdhar and Praveen Kumar for the Respondent.
The following Order of the Court was delivered: This appeal is directed against the Judgment dated 13.3.1972 made by a Division Bench of the Allahabad High Court in Income Tax Reference No. 457 of 1968 deciding the following question of law in favour of the assessee and against the Revenue.
"Whether on the facts and in the circumstances of the case the assessee can be said to have complied with the provi sions of proviso (b) to section 10(2)(vib) of the Income Tax Act, 1922 and was, therefore, entitled to allowance of development rebate on the plant and machinery installed after 1.1. 1958.
" It would be unnecessary to detail out facts which led to the framing of the question and the answer given.
The dis pute centered around the timing of the creation of the reserve known as the development rebate reserve.
In Commis sioner of Income Tax, Madras vs Veeraswami Nainar & Ors., 55 ITR p. 35, the Madras High Court took the view that develop ment rebate reserve should be made at the time of making up the Profits and Loss Account.
This view was affirmed by this Court in Indian Overseas Bank 's Ltd. vs Commissioner of Income Tax, 12.
Both cases arose under the Indian Income Tax Act, 1922.
Distinction was drawn between develop ment rebate reserve and other reserves creatable under the Companies Act and the Income Tax Act and it was required to be separately created.
On appearance of the Indian Overseas Bank 's case on the scene it appears that an 464 important circular of the Central Board of Direct Taxes was unwittingly mowed down.
That circular was of October 4, 1965 and stands reproduced in circular No. 189 dated 30th Janu ary, 1976 at page 90 in 102 Income Tax Reports (Statutes).
The Board 's Explanation with regard to the position for creation of statutory reserve for allowance of development rebate was in these terms: (a) In the case of certain industrial undertakings, particularly those in which there is Government participa tion either by way of capital, loan or guarantee, and where there are certain obligations by law or agreement about the maintenance of reserve for development purposes, the devel opment rebate reserve may be treated as included in the said reserve though not specifically created as a development rebate reserve.
(b) In a case where the total income computed before allowing the development rebate is a loss there was no legal obligation to create any statutory reserve in that year as no development rebate would actually be allowed in that year.
(c) Where there was no deliberate contravention of the provisions, the Income tax Officer may condone genuine deficiencies subject to the same being made good by the assessee though operation of adequate additional reserve in the current year books in which the assessment is framed.
This led to a spate of litigation, pressing the Indian Overseas Bank 's case some taxing authorities in some cases took revisional and rectificatory actions.
These reached various High Courts.
The Gujarat High Court in Surat Textile Mills Ltd. vs Commissioner of Income tax Gujarat, 80 I.T.R.P. 1 opted for what may be called a narrow view in assuming that besides Explanation (a) reproduced above explanations (b) and (c) as well too stood wiped out by Indian Overseas Bank 's case.
In these circumstances the Central Board of Direct Taxes took the step of withdrawing in the year 1972 the Circular dated October 14, 1965 to the extent it stood superseded by decision in Indian Overseas Bank 's case and the judgment of the Gujarat High Court in Surat Textile Mills Ltd. vs Commissioner of Income Tax.
Other High Courts took what may be called a broader view.
The trend of reasoning in those cases was that expla nation (a) only was done away with by this Court in Indian Overseas Bank 's case but explanations (b) and (c) were still alive.
In this connection Veerabha 465 dra Iron Foundary & Anr.
vs Commissioner of Income Tax, ; Tata Iron and Steel Co. Ltd. vs
N.C. Upadhyaya, 96 I.T.R.p.
1 and The Commissioner of Income Tax vs Sardar Singh, may be seen.
In the face of such difference of opinion, it was repre sented to the Board that earlier instructions dated October 14, 1965 represented the correct position of law and that the withdrawal to the extent it was presumed to be overruled by this Court in Indian Overseas Bank 's case had created unnecessary hardship to the assessees.
It appears that the instant case, out of which this appeal has arisen, was decided by the Allahabad High Court taking the broader view, Special leave was sought by the Revenue from this Court on the question of resolving the conflict between the two views.
Leave was granted at a time when the Board itself had clarified the matter vide Circular No. 189 dated 30th January, 1986 of which hint has been left earlier.
The Board states to have re examined the issue involved coming to the view that except the clarification given in paragraph (a) above, which stood superseded by the decision of this Court in Indian Overseas Bank 's case, the clarifications given in paragraphs (b) and (c) quoted above hold good.
It can thus legitimately be stated that the Board has itself opted for the view expressed in Tara Iron and Steel Companies ' case and other cases of the kind taking the broader view in the matter.
When the Board has itself opted for that view and that view is being followed by Income Tax authorities concerned, we see no reason to do the exercise of taking any side of the two views and leave the matter at that.
It is undisputed that the Board 's view is not only valid under the new Income Tax Act of 1961 but to the Indian Income Tax Act, 1922 as well.
For the foregoing discussions this appeal fails and the judgment of the High Court is left untouched.
In the circum stances of the case there will be no order as to costs.
V.P.R. Appeal dis missed.
|
In Commissioner of Income Tax, Madras vs Veeraswami Nainar & 9rs.
, , the Madras High Court took the view that the development rebate reserved should be made at the time of making up the Profits and Loss Account, and this was affirmed by this Court in Indian Overseas Bank 's Ltd. vs Commissioner of Income Tax, A distinction was drawn between development rebate reserve and other reserves createable under the Companies Act and the Income Tax Act and it was required to be separately created.
Consequent to this decision it was noticed that an important circuit of the Central Board of Direct Taxes dated October, 4, 1965 was unwittingly mowed down.
This circular gave the Board 's Explanation three paragraphs (a), (b) and (c) regarding the position for creation statutory reserve for allowance of development rebate.
A spate of litigation ensued and some of the taxing authorities, relying on the Indian Overseas Bank 's case in some cases, took revitional and rectificatory actions, and these reached various High Courts.
The Gujarat High Court in Surat Textiles Mills Ltd. vs Commissioner of Income tax Gujarat, opted for the narrow view in assuming that all the 3 Explanations contained in the 1965 Circular stood wiped out by Indian Overseas Bank 's case.
The Central Board of Direct Taxes, therefore, took the step of withdrawing in the year 1972 the Circular dated October 14, 1965 to the extent it stood superseded by deci sion in Indian Overseas Bank 's case.
Other High Courts, however, took a broader view to the effect that Explanation contained in para (a) only was done away with by this Court 's decision in Indian Overseas Bank 's case and that contained in paras (b) and (c) were still alive.
462 On account of the aforesaid difference of opinion, it was represented to the Board that the earlier instructions dated October 14, 1965 represented the correct position of law and that the withdrawal to the extent it was presumed to be overruled by the decision in Indian Overseas Bank 's case had created unnecessary hardships to the assessees.
In the instant appeal the question, whether the respond entassessee was entitled to allowance rebate on the plant and machinery after 1.1.1958, after due compliance with the provisions of proviso (b) to section 10(2)(vib) of the Income Tax Act, 1922 was answered by the Division Bench of the Allahabad High Court in favour of the assessee and against the Revenue.
The Revenue appealed to this Court.
Dismissing the appeal, this Court, HELD: 1.
The Board itself had clarified the matter by Circular No. 189 dated 30th January, 1986.
It states to have re examined the issue involved coming to the view that except the clarification contained in Explanation para (a) which stood superseded by the decision of this Court in Indian Overseas Bank 's case, the clarification given in paragraphs (b) and (c) hold good.
[465D] 2.
The Board itself has opted for the broader view expressed in the matter in the,Tata Iron and Steel Compa nies ' case and other cases.
There is, therefore, no reason to do the exercise of taking any side of the two views.
[465E] 3.
It is undisputed that the Board 's view is not only valid under the new Income Tax Act of 1961, but to the Indian income Tax Act, 1922 as well.
[465F] Commissioner of Income Tax, Madras vs Veeraswami Nainar and Ors., , affirmed.
Indian Overseas Bank Ltd. vs Commissioner of Income Tax, , followed.
Surat Textile Mills Ltd. vs Commissioner of Income Tax Gujarat, , overruled.
Veerabhadra Iron Foundary & Anr.
vs Commissioner of Income I.T.R. 425; Tata Iron and Steel Co. Ltd. vs
N. C Upadhyaya, and The Commissioner of Income Tax vs Sardar Singh, 86ITR 387, approved.
|
Civil Appeal No. 105 19 of 1983.
From the Judgment and Order dated 12.9.1983 of the Punjab and Haryana High Court in W.P. No. 3798 of 1983.
M.S. Gujral, S.K. Bagga, Ms. Bagga, S.D. Sharma, B,S. Gupta.
P.C Kapur, R.N. Mittal, S.D. Gupta, S,M. Ashri and K.K. Mohan for the Appellants.
R.S. Sodhi and C.M. Nayyar for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The appellants were in service as tube well operators in the irrigation branch of the Public Works Department of the Punjab State.
The State took a decision to transfer all the tubewells in this branch to the Punjab State Tubewell Corporation (hereinafter referred to as 'the Corporation '), a company wholly owned and managed by the State of Punjab.
Consequent on this decision, a notification was issued on 30th November, 1982 to the effect that "the posts sanctioned for the Tubewell Circle, Irrigation Branch, Punjab, are no longer needed in the public interest.
" It was, therefore ordered that all the permanent posts sanc tioned for the above circle be abolished with effect from 1.3.1983 and that all temporary posts be discontinued with effect from the same date.
A little earlier, on 31st August, 1982, the petitioners were served with notices in terms of section 25 F of the (hereinafter referred to as 'section 25F ') terminating their services with effect from 30th November.
These notices were, however, set aside as not being in consonance with clause (c) of section 25 F. The State Government, therefore, issued fresh notices terminating the services of the petitioners with effect from March 1, 1983.
These notices were also set aside by the High Court on the ground that they did not conform to the provisions of clause (b) of section 25(F).
Thereupon the State served fresh notices on the petitioners terminating their services in terms of section 25 F with effect from August 31, 1983.
The appellants once again approached the High Court contending that the decision of the State Govern ment transferring the tubewells to the Corporation and terminating their services was invalid.
It was contended: (a) that the impugned notices did not fulfil the requirements of clauses (b) and (c) of section 25 F; (b) that the notifica tion by which the tubewells were transferred was mala fide, the only object of the transfer being to frustrate certain claims of the petitioners which had been judicially recog nised; and (c) that, in case the action of the State is upheld, the respondent Corporation should be held to be under an obligation to employ the petitioners with conti nutiy of service and under the same terms and conditions which they were enjoying prior to their retrenchment from the service of the State.
These contentions were rejected by the High Court.
It held that the notices did not suffer from any defect.
It was pointed out that the writ petitions had been filed before the expiry of the date from which the retrenchment notice was to be effective, namely, 31st August, 1983.
The re trenchment notice itself specifically mentioned that the retrenchment compensation, as admissible under the rules, will be paid before the notice of retrenchment took effect and that it could be collected personally from the respond ent 's Sub Divisional/Divisional Officers.
At the instance of the Court, the State had filed an additional affidavit in which it was averred that drafts in respect of the amounts of compensation had been despatched to the divisional of fices in the manner following Tubewell Division Malerkotla Between 25 to 27 August, 1983 Tubewell Division Hoshiarpur Between 19 to 24 August, 1983 Tubewell Division Jullundur Between 19 to 24 August, 1983 The relevant records showing the despatch of these drafts were also produced in the court.
The High Court was satis fied that the State had despatched individual bank drafts in respect of each of the employees well in advance of the date of expiry of the notice period and that the despatch of these drafts to the divisional offices constituted a good and valid tender of the compensation amount to the appellants.
The court held that this was sufficient compliance with the provisions of clause (b) of section 25 F. So far as the provisions of clause (c) of section 25 F were concerned, the High Court was satisfied that the requisite notice in the prescribed form 'P ' was sent to the Secretary to Government, Labour Department and the Employment Exchange concerned by personal delivery duly acknowledged in the peon book of the Department.
Pointing out that the requirements of clause (c) of section 25 F 373 were only directory and not mandatory, the High Court was of the opinion that the notices were not vitiated due to non compliance with clause (c) of section 25 F. Turning to the allegation regarding mala fides, the contention of the appellants was this.
They submitted that the tubewell operators in the Irrigation Branch of the PWD had filed a writ petition, being C.W.P. 3340 of 1972, in the Punjab High Court claiming parity of pay with the tubewell operators employed in the Public Health Department of the State Government.
That petition was allowed on February 5, 1981.
But the respondent authorities failed to implement the directions contained in that judgment, thus forcing the petitioners to move a contempt application (No. 221 of 1981).
Thereafter, the State authorities gave effect to the judgment and paid arrears to the petitioners in the writ petition but did not extend the benefit thereof to the tubewell operators other than the actual petitioners in the writ petition.
The other tubewell operators, thus denied the benefits of the judgment, were constrained to file three more writ petitions seeking the extension of same relief to them.
These writ petitions were allowed on 7.8.1981 in terms of the earlier decision dated 5.2.1981.
The respondent authorities chose to file S.L.P. Nos.9195 to 9197 of 198 1 in the Supreme Court but these were dismissed on 19.2.
Still, the respondent authorities showed their reluctance to implement the judgments of the High Court compelling the petitioners to file three contempt petitions (Nos.294 to 296 of 1981) against the defaulting authorities.
However, before the disposal of these writ petitions, the State filed a letters patent appeal against the judgment in C.W.P. No. 3340 of 1972 and obtained an order staying the operation of the said judgment.
Consequent on this, the contempt applications had to be withdrawn and were dismissed as such on 8.4. 1982.
We are told that the letters patent appeals have been dismissed recently on 7.8. 1990.
Accordingly to the appellants, the authorities took a decision to transfer the tubewells of the irrigation branch to the Corporation only with a view to deprive the appellants of the benefit they had gained as a result of the above litigation.
It was pointed out that the Corporation had come into existence as early as 1970.
Its main objects, as set out in the Corporation 's memorandum of association, were, inter alia: XXX XXX XXX (2) To take over from the Government of Punjab the existing system of State owned irrigation and augmentation 374 tubewells along with connected buildings, assets, works and any of their projects connected with the installation, maintenance and operation of the State owned tubewells, with the rights and liabilities of the Government of Punjab so far as they relate to such tubewells, buildings, assets, works or projects.
These assets shall be taken over by the Punjab State Tube well Corporation Limited as contribution by the Punjab Government towards share capital.
XXX XXX XXX (19) To enter into any arrangement with the Government of India, Government of Punjab, or any other Government or State or local authority for the purpose of carrying out the objects of the company for the furthering its interests and to obtain from such Government or Authority or person any charters, subsidies, loans, indemnities, grants, contracts, licences, rights, concessions, privileges or immunities which the company may think desirable to obtain and exercise and comply with any such arrangements, rights, privileges and concessions.
" Though the Corporation had been formed so long ago with the express object of taking over the tubewells of the irriga tion branch and though it was operating a large number of tubewells on its own account since then, no efforts had been made by the Government to transfer the tubewells belonging to the State to the Corporation till 1982.
Even under the impugned notification only tubewells belonging to the irri gation branch were transferred but not those which were being operated by the Public Health Department of the same State.
The appellants vehemently contended that all these facts clearly showed that the sudden decision in 1982 to transfer the tubewells to the Corporation was intended as a measure of victimisation of the appellants who were only fighting for their rights of equal pay with other tubewell operators in the State.
The High Court did not find any substance in this contention.
It pointed out that the idea that eventually the tubewells belonging to the State should be transferred to the Corporation had germinated as early as in 1970.
Though this was not implemented immediately, a decision to transfer the tubewells to the Corporation had been taken in the light 375 of the recommendations of the Estimates Committee of the Punjab Vidhan Sabha made in the year 1977 78, that is, about three years earlier to the decision of the High Court dated 5.2.1981 in C.W.P. No. 3340 of 1972.
The authorities had placed before the Court the minutes of a meeting held under the chairmanship of the Chief Minister of Punjab on October 18, 1979, wherein it had been decided that, since irrigation from the State tubewells had not developed as expected and the State Government was running into a finan cial loss on account of the operation of these tubewells, the same be transferred to the Corporation.
It had also been decided at the meeting that the Government would meet the loss that may be suffered by the Corporation on account of the operation and maintenance of these tubewells.
In the light of these facts, the High Court held that there was no basis for the allegation of the petitioners that the im pugned notification had been issued mala fide solely with a view to deprive the appellants of the benefits they had obtained from the courts.
It was pointed out by the High Court that the appellants had subsequently been given all the benefits which they had derived as a result of the writ petitions.
That apart, it was also found that the Corpora tion had made an offer of re employment to all the appel lants effective from the date of expiry of the notice of their retrenchment by the State Government.
All this showed, according to the learned Judges, that the sole object of the issuance of the notification was to get rid 'of the tube wells which were the cause of a constant and ever increasing loss to the State exchequer and not any mala fide or extra neous reasons.
On contention (c), the High Court observed as follows: "So far as the alternative relief of re employment with continuity of service and pensionary benefits in terms of the Punjab Civil Service Rules is concerned, the petitioners cannot be granted the same in view of the provisions of section 25 FF (of the ) as introduced on September 4, 1956.
In this regard the petitioners have based their whole claim on certain observations made in two Division Bench judgments of the Bombay High Court, reported as New Cotton Mills Ltd. vs Labour Appellate Tribunal and Others, and N.J. Chavan and Others vs P.D. Sawarkar and Others, A.I.R. 1958 Bombay 133.
Besides there being dissimilarity of facts in those cases and the instant case, the same relate to a period prior to the insertion of section 25 FF.
In Anakapalle Cooperative Agri cultural and Industrial Society 376 Ltd. vs Workmen and Others, ; , their Lord ships of the Supreme Court after noticing the first judgment of the Bombay High Court referred to above, have held in categorical terms that such employees can make no claim against the transferee concern.
Otherwise also we are of the view that the claim of the petitioners is not covered by section 25 FF of the Act as it has nowhere been pleaded or established by them that the ownership or management of the tubewells has been transferred by the State Government to the corporation either 'by agreement or by operation of law '.
As already pointed out, the transfer of the tubewells in the instant case has taken place as a result of the unilateral decision by the State Government.
Even if it is to be accepted to be a case of transfer of the undertaking by agreement as is suggested by the learned counsel for the petitioners, still the wording of the proviso and more 'particularly of clause (b) to section 25 FF clearly indi cate that the transfree concern of the management can change the terms and conditions of the workman.
Further on the facts of the case, we do not see how the petitioners can claim the benefits or rights of a civil servant while in the service of the corporation and thereby force the corporation to say good bye to its rules and regulations."
" In the result, the various writ petitions were dismissed and hence the present appeals.
Before us, practically the same arguments have been addressed as were addressed before the High Court but with slight variations.
It might appear at first sight that the appellants have really no cause of grievance inasmuch as, though retrenched by the State Government, their services have been taken over by the Corporation.
We have also been informed that the scale of pay of the tubewell operators in the Corporation is identical with that of those employed by the State Government.
Though at one stage the Corporation had taken the stand that the appellants will be taken as fresh appointees in the Corporation, it is now common ground that the Corporation has fixed them up at the same level of pay at which they were in Government service immediately before retrenchment and they are also being granted incre ments on that scale.
Though these concessions were made during the pendency of the proceedings on interim applica tions made by the appellants, the learned counsel for the State and Corporation have stated before us that these benefits would be continued 377 irrespective of the decision in these matters.
Thus, in the result, so far as pay is concerned, the petitioners have suffered no detriment whatsoever as a result of the action taken by the Government.
There are, however, two grounds of dissatisfaction which are consequent on the appellants being treated as fresh appointees who have entered the service of the Corporation only on the dates of their respective ap pointments thereto with the result that all the appellants will be junior in service to the tubewell operators who had been engaged by the Corporation, on its own account, between 1970 and the dates on which the appellants joined the serv ice of the Corporation.
This by itself may also not be much of a disadvantage to the appellants since many of them are senior in age the other tubewell operators and may well retire earlier and we are also told that there are no ave nues of promotion from the post of tubewell operators, with the result that the question of seniority may not be very material.
The apprehension of the petitioners, however, is that their down gradation in seniority will affect them in case the Corporation starts closing down some of the tube wells and discharging its staff, an apprehension which is stated to be not purely hypothetical but quite real.
The second disadvantage is that many of the appellants have put in a large number of years in the service of the Government.
By being treated as retrenched Government servants, they will be able to get terminal benefits and pension only on the basis of their present lengths of their service in the Government.
On the other hand, if they were to continue with the Corporation under the same terms and conditions which they were enjoying under the Government, they would get the advantage of continuity of service and thus be entitled to substantially higher amounts of pension and other terminal benefits.
On a bought calculation, it is stated that some of the appellants might stand to lose about Rs.600 to Rs.700 per month as a result of being deprived of the benefit of their long service in Government and by being treated as new recruits in the corporation.
We have heard the learned counsel for the appellants as well as the counsel for the State and the counsel for the Corporation.
We entirely agree with the reasoning of the High Court on contentions (a) and (b) earlier set out.
We are also of the opinion that no ulterior motives on the part of the Government have been established.
It is no doubt true that there was some litigation between the appellants and the Government but this related to their pay scales and it is not common ground before us eventually the petitioners have had the benefit of the higher pay scales which were in vogue in the Public Health Department.
It is no doubt true that the increased wage bill consequent on these decisions of the High Court must have made the 378 tubewells in the irrigation branch more unremunerative than before and may thus have precipitated the decision to trans fer the tubewells to the Corporation.
However, as pointed out by the High Court, the decision that there should be a tubewell Corporation, that the Corporation should, in course of time, acquire the tubewells belonging to the Government and that the tubewells of the irrigation branch should be made over to the Corporation had been taken quite a long time back.
The fact appears to be that the tubewells were not being operated profitably by the Government and the Government seems to have taken a decision that it would be more efficient, economical and prudent to have these tube wells run by the Corporation.
There is no reason to doubt the bona fides or the genuineness of this arrangement It is true that the tubewells in the Public Health Department do not appear to have been transferred to the Corporation.
But we have no details before us regarding the magnitude of the State 's problem vis avis those tubewells and it is difficult to draw an inference, merely because the tubewells of the Public Health Department were not transferred to the Corpo ration, that the transfer of the tubewells in the irrigation branch was actuated by a desire to victimise the appellants.
We, therefore, see no substance in this contention of the appellants.
We do not also see any force in the contentions regard ing noncompliance with the provisions of section 25 F of the .
It is urged on behalf of the appel lants that the State has not furnished the details of the amounts of compensation determined in the case of each employee and that the State had also taken no steps to deliver the payment in respect of each employee at his door by the relevant date.
It is submitted that the tender of compensation under section 25 F, in order to be valid, should be of the precise amount and should be made simulta neously with termination of the service.
This, of course, is correct but the High Court has satisfied itself by looking into the original records, that drafts in respect of individual employees were dispatched in time so as to reach divisional/sub divisional offices by 31st of August, 1983.
An attempt was made before us to suggest that there was some discrepancy between two affidavits filed by the State Gov ernment in this behalf.
We have perused the said averments and we find no inconsistency as alleged.
It is true that the amounts were not actually paid or tendered to the workers by the Corporation directly but the Corporation had evolved a method of disbursement of compensation in the interest of the workers ' convenience.
Instead of making the appellants, spread out all over the State, to come to the head office to collect the compensation and to avoid the inconvenience and difficulty of the Corporation making available the compensa tion 379 at the doorstep of each employee, the Corporation made arrangements whereby the tubewell operators could go to the nearest divisional/sub divisional office and collect the amount of compensation due to them.
It appears that the appellants were not interested in taking the compensation amount.
None of them appears to have ascertained whether these amounts had reached the sub divisional office and whether they were for the correct amounts.
No instance has been pointed out to us to show that they were not for the correct amounts.
We do not think we need elaborate further on this aspect since the relevant records were brought before the High Court and the High Court was satisfied that the individual compensation drafts were sent to the various subordinate offices ready for distribution to the concerned workers on or before the relevant date.
In the circumstances of this case, we agree with the High Court that when indi vidual drafts for the amounts of compensation due to the various tubewell operators were forwarded to the divisional/sub divisional offices, sufficiently in time to be available to be taken by them by 31st August, 1983, there was sufficient compliance with the provisions of clause (b) of section 25 F. The contention based on clause (c) of section 25 F is equally baseless.
It has been verified that notices were sent to the Labour department as well as to the employment exchange through the peon book.
There is no reason to doubt the entries in these books.
The suggestion is that they should have been sent by registered post.
As rightly pointed out by the High Court, such a requirement can be treated only as directory and not mandatory and it would be errone ous to hold that, unless sent by registered post, the no tices cannot be treated as complying with the statute.
We, therefore, reject this contention as well.
This leaves for consideration the principal question in this case as to whether in circumstances such as these, the State is under an obligation to protect the terms and condi tions of service of the tubewell operators.
The State 's case is that it had transferred its tubewells to the Corporation.
The operators, therefore, became surplus and they were retrenched.
Retrenchment compensation was duly paid to them.
It is suggested that the State 's obligation came to an end with this.
It was under no obligation to find any fresh or alternative employment to the workers.
However, being a welfare State, it did arrange for such alternative employ ment.
It was obviously under the State 's directions that the Corporation went out of its way to confer a favour on the appellants by agreeing to take them into its service.
It is submitted that 380 the Corporation had its own terms and conditions of service for its employees and could not change those terms and conditions of service for the benefit of those few employees whose services had been taken over as an act of commiseration.
It would be unfair on the part of the Corporation to give the appellants benefit of their earlier service in the Government and made them senior to other employees who had been serving in the Corporation right from the beginning.
It is, therefore, submitted that the two chapters of service of the appellants, one with the Government and the other with the Corporation are two separate and independent chapters.
The first chapter has come to a close because the State Government was not able to continue to operate the tubewells by itself.
The second chapter has commenced with a totally independent offer by the Corporation to the erstwhile Gov ernment servants of an employment in the Corporation.
This is a fresh employment subject to the normal rules and regu lations of the Corporation.
The appellants have no right to claim any continuity of service in the circumstances.
Shri Gujral, learned counsel for the appellants has contended 'before us that the approach which the State Government wants this Court to adopt is an unrealistic and purely technical approach.
According to him, the Corporation is realty nothing but a department of the Government.
It is no doubt an independent entity in the sense that it has a separate legal existence with its own employees and its own finances to be looked after according to certain rules and regulations but, says Sri Gujral, in circumstances such as these, the "corporate veil" of the Corporation has to be torn as under and the basic identity of the Corporation as a department of the Government should be recognised and given effect to.
Alternatively, Shri Gujral argues, even if the Corpora tion be taken to be a separate legal entity, it is clearly a "successor" to the Government department.
He points out that the very memorandum of the Corporation contemplates the taking over by it of the tubewells belonging to the Govern ment together with all the rights and liabilities of the Government so far as they relate to such tubewells.
The assets taken over are to be treated as contributions of capital by the Government to the Corporation.
It is also common ground that in this case, while transferring the tubewells to the Corporation, the Government has assured the Corporation that, if it suffers any loses because of the transfer, the losses would be made good by the Government.
The true and real essence of the transaction put through is that the tubewells, along with all appurtenances, rights and liabilities, including the liabi 381 lity to continue the services of the tubewell operators have been taken over by the Corporation.
Having regard to the virtual identity of the Corporation and the Government, this is really a case of the Corporation having taken over a department of the Government though, in form, the Government has purported to retrench, and the Corporation to re employ, the appellants.
Shri Gujral submitted that both the irriga tion branch of the State Government as well as the Corporation admittedly constitute an "industry" within the meaning of the .
Indeed, retrenchment compen sation has been offered to the appellants under the Indus trial Disputes Act.
In these circumstances, Shri Gujral vehemently contends, the problem before us should be looked at from the. point of view of industrial law.
One should ask oneself the question: if a similar transaction had been put through in the private sector by two industrial organisa tions, how would the Court could have tackled the problem? This, according to Shri Gujral, is the proper test to be applied and, if that is done, he submits, there can be put one answer to the question in this case.
There is no dispute before us that the running of tube wells constitutes an 'industry ' whether in the hands of the Government or in the hands of the Corporation.
As pointed out by this Court in State of Bihar vs Industrial Tribunal,, , there is also no incompatibility in applying some of the provisions of the to persons in the service of the Government.
We may, therefore, first examine what position would be if the principles of industrial law were to be applied to a situa tion where one person succeeds to the business which is being carried on by another.
Shri Gujral contends that there is preponderant authority for holding that, if those princi ples were to apply, the tubewell operators should have, in the Corporation, the same terms and conditions of service which they enjoyed when they were in the Government.
In support of this proposition, Shri Gujral relies upon the decision of the Bombay High Court in New Gujarat Cotton Mills Ltd. vs Labour Appellate Tribunal, [1957] II LLJ 194.
In that case, the business and undertaking of a cotton mill was taken over as a going concern by another company.
The successor company, however, declined to continue in its employment some of the employees of the predecessor company.
Thereupon, the applications were filed by them before the labour court for an order against the successor company for reinstatement or reemployment.
This application was rejected by the labour court but, on appeal the Labour Appellate Tribunal held that the new company could not refuse tO take them in.
It observed (vide Ramjilal Nathulal vs Himabhai Mills Co. Ltd., [1956] II LLJ 244: 382 "12.Under the civil law, a person who is a successor to a business is not bound merely because of such succession by the debts or liabilities of the old business and even if he has agreed with his transferor to be so liable, third par ties, in the absence of a tripartite arrangement, cannot enforce such debt or liability against the transferor who alone continues to remain liable for such debts and liabili ties to third parties.
13.Unlike the civil law, however, the industrial law has naturally taken a different view with regard to the duties of a successor in business who has decided to run the same and in the case of employees of the old concern it has regarded the rights and obligations of the old concern as continuing and to be enforceable as against the new manage ment and not to be affected by the substitution of the new management for the old, whenever justice of the case would require such enforcement .
The same principles have also been recognised as of general application by the Madras High Court in the case of Odeon Cinema, [1954] II LLJ 314 as shown by the observations of their Lordships at p.319 where they remark : 'The industrial tribunal has cited a number of decisions of other industrial tribunals, in the course of which it has been held that where there is a transfer of business of one management to another, the rights and obli gations which existed as between the old management and their workers continue to exist vis a vis the new manage ment, after the date of the transfer.
The learned counsel for the petitioners does not challenge the correctness of these decisions, which really are in application of the principle embodied in section 18(c) of the (underlining ours) This view was approved by the Bombay High Court.
Speaking for the Court, Shah, J. observed: "In our view, in industrial matters, the Court is entitled and is indeed bound to modify contractual rights and obliga tions on considerations of equity and in the larger inter ests of the community, such as promotion of industrial peace and security of employment of workmen.
Merely because under the law of contracts, a claim may not lie at 383 the instance of the applicants to be reemployed or reinstat ed by the new company, the claim made by the applicants cannot be regarded as inadmissible.
It appears to have been settled by a large number of decisions of the industrial and labour courts that the industrial law takes a different view about the duties and obligations of a successor inbusiness, and if a successor decides to run the same business which was carried on by his predecessor, the employees of the old concern are entitled to submit a dispute before the indus trial tribunal regarding their rights and obligations in the business of the old concern, and those rights and obliga tions must be regarded as continuing and enforceable against the new management and not affected by the substitution of the new management for the old.
In Odeon Cinema vs Workers of Sagar Talkies, [1954] II LEJ 3 14, it was observed by the Madras High Court (p. 319): " where there is a transfer of a business of one management to another, the rights and obligations which existed as between the old management and their work ers continue to exist vis a vis the new management, after the date of the transfer."
It is also implicit is Ss. 114 and 1 15 of the Bombay Indus trial Relations Act that the rights and obligations of a management of an industrial undertaking are enforceable in proper cases against its successor.
It appears from the terms of section 18(c) of the that a successor to an old undertaking is liable to meet certain obligations of its predecessors.
In our view, therefore, the absence of a direct contractual relation between the appli cants and the new company is by itself not a ground for rejecting the claim made by the applicants. "
Shri Nayar submits that the Bombay case was one in which the employees of the old concern had only sought 're employment" in the successor concern, a concept quite different from the concept of continuity in service on the same terms and conditions and invited our attention to section 25H of the Act and to the decision in Indian Hume Pipe Co. Ltd. vs Bhima rao, It is true that the claim in the Bombay case appears to have been one for re employment but the principle laid down in these decisions is in wider terms, as the passages 384 underlined in the above excerpts will show.
We may also refer in this context to the brief decision of this Court in Ban Nigam Karamchari Kalyan Sangh & Anr vs Divisional Logging Manager & Ors., JT In this case, the petitioners were in the employment of U.P. Forest Corpora tion which was appointed agent for collecting tendu leaves.
The Ban Nigam was appointed in place of the Corporation.
Thereupon, the Corporation terminated the services of the workmen.
This Court passed a brief order to the following effect: "In the proceeding before the High Court, as also here, the State and the Nigam have not been impleaded as parties but learned counsel for the Corporation tells us that it was the understanding that the Nigam would takeover these 149 work men on the same terms and conditions as were applicable when they were working under the Corporation.
Since both the Corporation and the Nigam are Government concerns as learned counsel for the Corporation tell us that this was the under standing, we direct the Nigam to continue the 149 workmen in employment on the same terms and conditions as were applica ble to them when the Corporation was the agent for collection of tendu leaves.
The list of the 149 workmen is not on record.
Learned counsel for the applicants has undertaken to provide the list within 24 hours.
" There was no doubt an understanding in this case but even without this, counsel says, the position would be the same.
It appears that the broad issue as to the rights of such workmen against a successor inbusiness was raised but not decided in Workmen vs Dahingeapara Tea Estate, [1958] II L.L.J. 498, a case which came up before a five judge Bench of this Court.
The High Court has, however, referred to decision of this Court in Anakapala Coop Agricultural and Industrial Society Ltd. vs Its Workmen, [1963] Supp. 1 S.C.R. 730 and taken the view that the principle enunciated in the judgments quoted earlier is not valid after the enactment of section 25FF of the Act.
This section provides that where there is a transfer of an undertaking by agreement or operation of law, an employee who loses his job because of such transfer will have a right to compensation from the predecessor, except where he gets the benefit of uninter rupted service with the new employer on no less favorable terms than before and will be entitled to compensation in case he should be retrenched later by the new employer.
It has been construed in the Anakapalla Society case to say that in such a situation the employee can at best claim retrenchment compensation from the predecessor on the basis of a notional 385 retrenchment but will have no right to claim re employment, much less on the same conditions as before, from the successor.
It is necessary to extract here certain observations from judgment in the Anakapalla case (supra) which, if we may say so with respect, clinch the issue.
Gajendragadkar, J., speaking for a five Judge Bench of the Court summed up the earlier legal position thus: "That takes us to the question as to what would be the nature of the appellant 's liability to the employees of the Company.
Before section 25 FF was introduced in the Act in 1956, this question was considered by industrial adjudication on general considerations of fair play and social justice.
In all cases, where the employees of the transferor concern claimed re employment at the hands of the transferee con cern, industrial adjudication first enquired into the ques tion as to whether the transferee concern could be said to be a successor in interest of the transferor concern.
If the answer was that the transferee was a successor in interest in business, then industrial adjudication considered the question of re employment in the light of broad principles.
It enquired whether the refusal of the successor to give re employment to the employees of his predecessor was capri cious and unjustified, or whether it was based on some reasonable and bona fide grounds.
In some cases, it appeared that there was not enough amount of work to justify the absorption of all the previous employees; sometimes the purchaser concern needed bona fide the assistance of better qualified and different type of workers; conceivably, in some cases, the purchaser has previous commitments for which he is answerable in the matter of employment of labour; and so, the claim of re employment made by the employees of the vendor concern had to be weighed against the pleas made by the purchaser concern for not employing the said employees and the problem had to be resolved on general grounds of fairplay and social justice.
In such a case, it was obvious ly impossible to lay down any hard and fast rules.
Indeed, experience of industrial adjudication shows that in resolv ing industrial disputes from case to case and from time to time, industrial adjudication generally avoids as it should to lay down inflexible rules because it is of the essence of industrial adjudication that the problem should be resolved by reference to the facts in each case so as to do justice to both the parties.
386 It was in this spirit that industrial adjudication ap proached this problem until 1956 when section 25 FF was intro duced in the Act.
Sometimes, the claim for re employment was allowed, or sometimes the claim for compensation was considered.
But it is significant that no industrial decision has been cited before us prior to 1956 under which the employees were held entitled to compensation against the vendor em ployer as well as re employment at the hands of the purchas er on the ground that it was a successor ininterest of the vendor.
" The Court then referred to the insertion of section 25 FF in 1956, the inadequacy of its language in view of Hariprasad vs Divikar, [1957] SCR 121, the effect of its retrospective amendment in 1957 and then concluded: . . and, therefore, in all cases to which section 25FF applies; the only claim which the employees of the transferred concern can legitimately make is a claim for compensation against their employers.
No claim can be made against the transferee of the said concern.
By amending section 25FF, the legislature has made it clear that if industrial undertakings are trans ferred, the employees of such transferred undertakings should be entitled to compensation, unless, of course, the continuity of their service or employment is not disturbed and that can happen if the transfer satisfies the three requirements of the proviso.
" The Supreme Court was dealing with a case of genuine transfer between two parties a predecessor and a successor at arms ' length where the principles of the law of contracts clearly held the field.
The employees of the predecessor had no privity of contract with the successor and could make no claims against him.
The industrial law, however, safeguarded his interests by inserting section 25FF and giving him a right to compensation against his former employer on the basis of a notional retrenchment except in cases where the successor, under the contract of transfer itself, adequately safeguard ed them by assuring them of continuity of service and of employment terms and conditions.
In the result he can get compensation or continuity but not both.
The present case before us raises an allied, but sometimes more important issues as to whether there cannot be situations in which the court or 387 industrial adjudicator, should, in the interests of justice, fairplay and industrial peace, hold the employee entitled to continuity with the successor without being compelled to be satisfied with compensation from the predecessor.
The Supreme Court itself has visualised such a case and made it clear that if a transfer is fictitious or benami section 25FF has no application at all.
Of course, in such a case, "there has been no change of ownership or management and despite an apparent transfer, the transferor employer continues to be the real employer and there has to be continuity of service under the same terms and conditions of service as before and there can be no question of compensation".
A second type of cases which comes to mind is one in which there is form, and perhaps also in law, a succession but the management contin ues to be in the hands of the same set of persons organised differently such as in Bombay Garage Ltd. vs Industrial Tribunal, and Artisan Press vs L.A.T., [1954] II L.L,.J. 424.
In such cases, the transferee and transferor are virtually the same and the over riding prin ciple should be that no one should be able to frustrate the intent and purpose of the law by drawing a corporate veil across the eyes of the court.
(see, Palmer, Company Law, 23rd Edn., pages 200 201, paras 8 and 10 and the decision in Kapur vs Shields, , cited therein).
These exceptions to the above rules, we think, would still be operative.
But it is not necessary here to decide whether this principle will help us to identify the corporation with the State Government in the present case for the present purposes, particularly as there is a catena of cases which do not approve of such identification (see Accountant and Secretarial Services P. Lid: vs Union, ; and the cases cited therein.).
Leaving this out of account then, we may turn to a third category of cases, which we think would also fail as an exception to the principle behind section 25FF.
This is where, as here, the transferor and/or transferee is a State or a State instrumentality, which is required to act fairly and not arbitrarily (see the recent pronouncement in Mahabir Auto Stores vs Indian Oil Corporation, [1990] 3 S.C.C. 752 and the Court has a say as to whether the terms and conditions on which it proposes to hand over or take over an industrial undertaking embody the requisite of "fairness inaction" and could be upheld.
We think that, certainly, in such circumstances it will be open to this Court to review the arrangement between the State Government and the Corporation and issue appropriate directions.
Indeed, such directions could be issued even if the elements of the transfer in the present case fall short of a complete succession to the business or undertaking of the State by the Corporation, as the principle sought to be applied is a constitutional principle flowing from the contours of article 14 of the Constitution which the State and Corpora 388 tion are obliged to adhere to.
We are making this observa tion because it was attempted to be argued on behalf of the State and the Corporation that only certain assets of the State 'industry ', viz. the tubewells, were taken over by the latter and nothing more.
We do not quite agree with this contention but, in view of the approach we propose to adopt, this aspect is not very material and need not be further discussed.
Looking at the facts of this case in the above perspec tive, it appears to us that the State Government has acted arbitrarily towards the appellants.
It is true that the State Government was incurring losses and decided to trans fer the tubewells to the Corporation.
This decision would have been the most unexceptionable, prudent and perhaps the only decision that the Government could have taken, if it had decided to completely cut itself off thereafter from any responsibility or liability arising out of the operation of the tubewells.
But that the Government did not do.
As point ed out earlier, the State Government, although transferring the tubewells, undertook to recoup any losses that the Corporation might incur as a result of the transfer.
The result, therefore, was that, despite the transfer of tube wells to the Corporation the Government continues to bear the losses arising from this activity.
But, while doing so, it has abridged the rights of the appellants by purporting to transfer only the tubewells and retrenched the appellants from service as a consequences.
A grievance has been made that, while several other members of staff belonging to the irrigation department such as engineers, clerks, etc. have been sent on deputation to the Corporation, the State has only chosen to retrench the service of as many as 498 tube well operators.
This differential treatment may not amount to discrimination as contended by the appellants because those others belonged to categories of Government staff which could come back to Government service in the event of the Corporation finding their services unnecessary at a future date, for one reason or another as they were persons with general qualifications who could be fitted into the other work of the irrigation branch.
The tubewell operators, however, could not have been sent on deputation because there was no possibility at all of their being fitted into the irrigation branch later, in case the Corporation could find no use for them because, once the tubewells had been transferred for good to the Corporation, the Government could find no openings for them in the service.
While, therefore, we do not agree with the appellant that the State Government discriminated against the appellants as compared with the other members of the staff by sending them on deputation but not the appellants, we think that this treat ment meted but to the other staff shows that the Government did not hesitate to burden the Corpo 389 ration with the liability of their salary etc.
while serving on deputation which would only augment the losses, if any, that the Corporation would incur by operating the tubewells.
But when it came to the case of the appellants, the Govern ment has considered it fit to retrench their services, simultaneously making some arrangement or issuing some directions enabling the Corporation to absorb them as if they were fresh recruits.
The assurance that they would be paid according to their original scales of pay and at their original leaves of pay came as a later development only because of the pending litigation.
It was very fair on the part of the State Government to decide that, as the tube wells would be operated by the Corporation, it would be prudent to run them with the help of the appellants rather than recruit new staff therefore and that the Government should bear the burden of any losses which the Corporation might incur as a result of running the tubewells But having gone thus far, we are unable to see why the Government stopped short of giving the appellants the benefit of their past services with the Government when thus absorbed by the Corporation.
Such a step would have preserved to the appel lants their rightful dues and retirement benefits.
The conduct of the Government in depriving the appellants of substantial benefits which have accrued to them as a result of their long service with the Government, although the tubewells continue to be run at its cost by a Corporation wholly owned by it, is something which is grossly unfair and inequitable.
This type of attitude designed to achieve nothing more than to deprive the employees of some benefits which they had earned, can be understood in the case of a private employer but comes ill from a State Government and smacks of arbitrariness.
Acting as a model employer, which the State ought to be, and having regard to the long length of service of most of the appellants, the state, in our opinion, should have agreed to bear the burden of giving the appellants credit for their past service with the Government.
That would not have affected the Corporation or its employees in any way except to a limited extent indicated below and, at the same time, it would have done justice to the appellants.
We think, therefore, that this is something which the State ought to be directed to do.
We would, however, like to clarify that the sole purpose and object of our above direction is that the appellants should be entitled to count their past service with the Government for the purpose of computation of their salary, length of service and retirement benefits with the Corporation.
This, however, should not result in the appellants ' claiming any seniority over the staff which the Corporation has otherwise engage right from its commencement in 1970.
To permit 390 such a claim would result in injustice to those employees whose seniority is based on their terms and conditions of service with the Corporation which had been entered into a long time before the present transfer proposal came to be implemented.
Though, as we have mentioned earlier, seniority in service is not of much importance in this case as there is no avenue of promotion to tubewell operators, the ques tion of seniority still becomes crucial in case the Corpora tion should close down any of the tubewells or decide on the retrenchment of its staff by reorganising the operation of tubewells in such a way that some of the staff may become surplus.
In such an event, if the appellants are given the benefit of their length of service with the Government for all purposes, some of the present employees of the Corpora tion may become liable to be retrenched as junior in length of service to some of the appellants.
Clearly, this should not be allowed to happen and the Corporation staff should not suffer merely because the appellants, who have been subsequently inducted into the Corporation, are given all the benefits of the length of their service with the Govern ment.
There can be no question of any of the appellants being considered senior to such operators on the Corpora tion 's establishment.
In fact we cannot give such a direc tion without giving such operators an opportunity of being heard.
We would, therefore, like to make it clear that, while the appellants will have, for purposes of computation of their salary, length of service and retirement benefits the advantage of counting the period of their service with the Government, this will not enable them to claim any seniority over the former employees of the Corporation.
At the same time there is the apprehension of the appel lants that if they are treated as juniors to all the Corpo ration 's employees, they may be sent out first in case there is any retrenchment.
It is prayed that it should be ensured that such an eventuality does not affect the present appel lants as a result of their being treated as juniors to the former employees of the Corporation.
We are told that this eventuality is not merely hypothetical but real.
This is a situation that cannot be helped, being one in which the equities in favour of the appellants will be counter weighed by those in favour of the Corporation 's direct employees, The only solution to this difficulty which we can see in for the Corporation not to retrench the services of any of the appellants as far as possible whether due to the closure of some of the tubewells or otherwise.
We are informed that a circular was issued by the Corporation on 13.7.87 and 19.8.87, directing, inter alia, that no fresh appointments of tubewell operators will be made in the Corporation against vacancies caused due to retrenchment, resignation or death of an exist 391 ing incumbent.
Such a direction became necessary because many of the tubewells of the Corporation had been installed in the fifties and they had out lived their optimum lives and it became necessary to cut down on the staff.
The continued adoption of this policy for some more time will help the appellants tide over the crisis envisaged above.
We have already pointed out that most of the appellants, who have now joined the Corporation, have rendered long years of service with the Government and will be retiring from serv ice in the next few years.
The Corporation can perhaps manage to continue them i. service without retrenching any of them on the ground that some of the tubewells have to be closed down or that some of these operators for some other reason have become surplus for its needs.
If this could be done, it will be most equitable as it will achieve the following ends: (1) it will enable the present appellants to continue in service till they retire in normal course; (2) it will protect the interests of the erstwhile operators of the Corporation who have been serving in the Corporation from the beginning; (3) it will not cause any financial prejudice to the Corpo ration because of the assurance already given that any losses incurred by running the tubewells would be borne by the Government itself; and it will ensure that the Government acts fairly and equitably fulfilling the legitimate expectations of its employees.
For the reasons discussed above, we declare that the appellants will be entitled to add their service in the Government to their length of service in the Corporation for purposes of computation of their salary, length of service and retirement benefits.
The Corporation is also directed to ensure, as far as possible, that none of the appellants are retrenched as surplus on account of any closure of tubewells or other like reason until they retire or leave the service of the Corporation voluntarily for any reason.
To sum up, even before the insertion of section 25FF in the Act, the employees of a predecessor had no right to claim re employment by the successor in business save in excep tional circumstances.
Even where available, that claim was not a matter of absolute right but of discretion, to be judicially exercised, having regard to all the 392 circumstances.
An industrial tribunal, while investigating such a claim, had to carefully consider all the aspects of the matter.
It had to examine whether the refusal to give re employment was capricious and industrially unjustified on the part of successor in business or whether he could show cause for such refusal on reasonable and bona fide grounds such as want of work, inability of the applicant to carry out the available work efficiently, late receipt of the application for re employment in view of prior commitments or any other cause which in the opinion of the tribunal made it unreasonable to force the successor in interest to give re employment to all or any of the employees of the old concern.
This discretion given to industrial courts is no longer generally available because of the insertion of section 25 FF.
But in a case where one or both of the par ties is a State instrumentality, having obligations under the Constitution, the Court has a right of judicial review over all aspects of transfer of the undertaking.
It is open to a court, in such a situation, to give appropriate direc tions to ensure that no injustice results from the change over.
In the present case, the parties to the transfer are a State on the one hand and a fully owned State Corporation on the other.
That is why we have examined the terms and condi tions of the transfer and given appropriate directions to meet the needs of the situation.
We, therefore, direct the State Government and the Corporation which is but a wholly owned State instrumentality bound to act at the behest of the State to carry out our directions above, the Corpora tion being at liberty to amend its rules and regulations, if necessary, to give effect to the same.
We have been given to understand that none of the appel lants has taken the compensation amounts tendered by the State and that the monies are now in deposit with the Corporation.
We have already pointed out that the appellants can claim either compensation or continuity of service but not both.
We should, therefore, like to make it clear that in case any of the appellants have been paid any compensation, that amount will have to be refunded by them before this order can be given effect to qua them.
The appeals stand disposed of accordingly.
There will be no order regarding costs.
R.S.S. Appeals disposed of.
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The appellants were in service as tubewell operators in the Irrigation Branch of the Public Works Department of the Punjab Government.
The State took a decision to transfer all the tubewells in this branch to the Punjab State Tubewell Corporation, a company wholly owned and managed by the State of Punjab.
Consequent on this decision, a notification was issued on 30th November, 1982 abolishing all the posts of tubewell operators in the Irrigation Branch, and accordingly notices terminating the services of the appellants were issued.
The appellants challenged the termination notices before the High Court contending (i) that the notification by which the tubewells were transferred was mala fide, the only object being to frustrate certain claims of the petitioners which had been judicially recognised; (ii) that the impugned notices did not fulfill the requirements of clauses (b) and (c) of section 25F of the in so far as the compensation amount of each individual was not deliv ered at his door, and the notices under clause (c) were not sent by registered post; and (iii) that, in case the action of the State was upheld, the respondent Corporation should be held to be under an obligation to employ the appellants with continuity of service and under the same terms and conditions which they were enjoying prior to their retrench ment from the service of the State.
The High Court rejected the petitions flied by the appellants.
The High Court inter alia found that the appel lants had been given all the benefits which they had ob tained from the court.
It was also found that the respondent corporation had made an offer of re employment to all the appellants effective from the date of expiry of the notices of their retrenchment by the State Government.
According to the learned 368 Judges, the sole object of the issuance of the notification was to get rid of the tubewells which were the cause of constant and ever increasing loss to the State exchequer and not any mala fide or extraneous reasons.
The services of the appellants have since been taken over by the Corporation.
Though at one stage the Corporation had taken the stand that the appellants would be taken as fresh appointees in the Corporation, it had subsequently fixed them up at the same level of pay at which they were in Government service immediately before retrenchment, and they were also being granted increments on that scale.
There remained two grounds of dissatisfaction: (1) that the appellants would be junior in service to the tubewell operators who had been engaged by the Corporation on its own account before the appellants joined the service of the Corporation, giving the appellants the apprehension that their down gradation in seniority would affect them in case the Corporation started closing down some of the tubewells and discharging its staff, and (2) if treated as retrenched Government servant, they would be able to get terminal benefits and pension only on the basis of their present lengths of service in the Government.
Before this Court, the contention of the appellants in this regard was that the Corporation was really nothing but a Department of the Government, and that in such circum stances, its "corporate veil" had to be torn as under and its basic identity as department of the Government recog nised and given effect to.
Alternatively it was argued that even if the Corporation be taken to be a separate enti ty, it was clearly a "successor" to the Government Depart ment as the Government had assured the Corporation that, if it suffered any losses because of the transfer, the losses would be made good by the Government, that having regard to the virtual identity of the Corporation and the Government, this was really a case of the Corporation having taken over a department of the Government, and that both the Irrigation Branch of the State Government as well as the Corporation admittedly constituted an "industry" within the meaning of the .
and the problem should be looked at from the point of view of industrial law.
The respondent 's case was that the State 's obligation came to an end with the payment of retrenchment compensa tion, that the Corporation went out of its way to confer a favour on the appellants by agreeing to take them into its service; that it would be unfair on the part of the Corpora tion to give the appellants benefit of their earlier service in the 369 Government and make them senior to other employees who had been serving in the Corporation right from the beginning: and that this was a fresh employment subject to the normal rules and regulations of the Corporation and the appellants had no right to claim any continuity of service in the circumstances.
Disposing of the appeal, this Court, HELD: (1) The fact appears to be that the tubewells were not being operated profitably by the Government and the Government seems to have taken a decision that it would he more efficient, economical and prudent to have these tube wells run by the Corporation.
There is no reason to doubt the bona fides or the genuineness of this arrangement.
[378B C] (2) When individual drafts for the amounts of compensa tion due to the various tubewell operators were forwarded to the divisional subdivisional offices, sufficiently in time to be available to be taken by them by 31st August, 1983 there was sufficient compliance with the provisions of clause (a) of section 25 F. [379C D] (3) The running of tubewells constitutes an "industry" whether in the hands of the government or in the hands of the Corporation.
[381D] (4) There is no incompatibility in applying some of the provisions of the to persons in the service of the Government.
[381D] State of Bihar vs Industrial Tribunal, (5) Notices under clause (c) of section 25 F were sent to the Labour Department as well as to the employment ex change through the poen book.
The High Court is right in pointing out that such a requirement can be treated errone ous to hold that unless sent by registered post, the notices cannot be treated as complying with the statute.
[379E] (6) Where the transferor and transfree is a State or a State instrumentality, which is required to act fairly and not arbitrarily, the Court has a say as to whether the terms and conditions on which it proposes to hand over or take over an industrial undertaking embody the requisite of "fairness in action".
In such circumstances it will be open to this Court to review the arrangement between the State Government and the corporation and issue appropriate direc tions.
The princi 370 ple sought to be applied is a constitutional principle flow ing from the contours of article 14 of Constitution which the State and Corporation are obliged to adhere to.
[387F H; 388A] New Gujarat Cotton Mills Ltd. vs Labour Appellate Tribu nal, [1957] II L.L.J. 194; Ramjilal Nathulal vs Himabai Mills Co. Ltd., [1956] II L.L.J. 244; Indian Hume Pipe Co. 'Ltd. vs Bhimarao, ; Ban Nigam Karamchari Kalyan Sangh vs Divisional Logging Manager & Ors., J.T. ; Workmen vs Dahingeapara Tea Estate, ; Anakapalla Co op.
Agricultural & Industrial Society Ltd. vs Its Workmen, [1963] Supp.1 S.C.R. 730; Hariprasad vs Divikar, [1957] S.C.R. 121; Bombay Garage Ltd. vs Industrial Tribunal, [1953] I L.L.J. 14; Artisan Press vs L.A.T., [1954] II L.L.J. 14; Kapur vs Shields, ; Accountant and Secretarial Services P. Ltd. vs Union; , and Mahabir Auto Stores vs Indian Oil Corporation, [1990] 3 S.C.C. 752, referred to.
{7) Looking at the facts of this case in the above perspective, it appears that the State Government has acted arbitrarily towards the appellants.
The conduct of the Government in depriving the appellants of substantial bene fits which have accrued to them as a result of their long service with the Government, although the tubewells continue to be run at its cost by a Corporation wholly owned by it, is something which is grossly unfair and inequitable.
This type of attitude designed to achieve nothing more than to deprive the employees of some benefits which they had earned, can be understood in the case of a private employer but seems ill from a State Government and smacks of arbi trariness.
[388B; 389D E] (8) The appellants will be entitled to add their service in the Government to their length of service in the Corpora tion for purposes of computation of their salary, length of service and retirement benefits.
The Corporation is also directed to ensure, as far as possible, that none of the appellants are retrenched as surplus on account of any closure of tubewells or other like reason until they retire or leave the service of the Corporation voluntarily for any reason.
The advantage of counting the period of their past service with the Government will, however, not enable them to claim any seniority over the former employees of the Corporation.
[391G H; 390E] (9) Even before the insertion of section 25FF in the Act,.the employees of a predecessor had no right to claim re employment by the successor in business save in excep tional circumstances.
Even where 371 available, that claim was not a matter of absolute right but one 01 ' discretion, to be judicially exercised, having regard to all the circumstances.
[391G H]
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ivil Appeal No. 2559 of 1988 From the Judgment and Order dated 31.8.1987 of A.P. Adminis trative Tribunal, Hyderabad in R.P. No. 393 i of 1987.
K. Madhva Reddy and G. Prabhakar for the Appellants.
Y.P. Rao for the Respondent.
561 The Judgment of the Court was delivered by SAWANT, J.
The admitted facts in the present case are that the respondent applied for Grade I and Grade II teacher posts (Post Graduate Teacher and Trained Graduate Teacher posts respectively) in September, 1985 pursuant to a news paper 's advertisement calling for applications for the said posts.
Admittedly, the qualification prescribed in the advertisement for the said posts was a second class degree in M.A., and the respondent held a third class degree in M.A.
However, it appears that on December 27, 1985, an order was issued wrongly by the first appellant appointing her as a Post Graduate Teacher in Hindi.
The order stated that her appointment was subject to the production of original cer tificates and to the compliance with the other necessary formalities.
When pursuant to the order, the respondent approached the authorities with the certificates, it was noticed that the respondent was not qualified for the post.
She was, therefore, not allowed to join the service, and was sent back.
The respondent thereafter approached the Andhra Pradesh Administrative Tribunal at Hyderabad representing to the Tribunal that pursuant to the order of December 27, 1985 she had joined her duties on January 2, 1986 and that she should be allowed to continue in service with all the bene fits from that day.
The Tribunal passed the impugned order directing the appellants to allow her to join the duties and to pay to her salary from the date she reported for her duties in compliance with the order of December 27, 1985.
The Tribunal also awarded costs against the appellants.
We are of the view that the Tribunal is clearly in error.
The reasons given by the Tribunal in support of its order are, firstly, that the appellants had issued the order of appointment knowing fully well that she was not quali fied, and secondly, that she was selected for the appoint ment because there was no other candidate available with better marks.
It has been brought to our notice during the course of the arguments that the original selection was made by mistake on the presumption that the respondent had satisfied the qualification requirements as stated in the advertise ment, without scrutinising the certificates copies of which were sent with her application.
The Selection Committee presumed that all those who had applied in response to the advertisement must have had the requisite qualifications needed for the posts.
However, the order appointing the respondent had made 562 it clear that the respondent should come along with the original certificates.
When the respondent approached the appellants with the originals of the certificates which were scrutinised, it was found that in fact she was short of the qualifications.
It is in these circumstances, that she was not allowed to join the service.
It cannot, therefore, be said that the appellants had selected the respondent with the knowledge that she was under qualified.
According to us, there is a good deal of force in this contention.
It is common knowledge that sometimes either by mistake or other wise the notes put up before the Selection Committee contain erroneous data prepared by the office, and sometimes the Selection Committee proceeds on the basis that all those who appear before it, are otherwise qualified.
However, the second stage at which the documents are scrutinised is when the higher authorities go through them at the time the candidate concerned approaches them for resuming duties along with the original certificates.
It is at that stage that the mistake was discovered in the present case and the respondent was not permitted to resume her duties.
We see nothing wrong in this action.
The observation of the Tribunal that there were no other candidates available with better marks is, in the circumstances, a halftruth because assuming that she had better mark among those who had applied, it seems that no one with second class had applied or the applications only of the third class candidates were considered.
If so, they were the applications of those third class candidates who had applied and not of all those who would have applied had the advertisement given an indication that those with a third class degree could also apply.
It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned.
The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had applied for the post because they did not possess the qualifications mentioned in the advertise ment.
It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable.
No court should be a party to the perpetuation of the fraudu lent practice.
We are afraid that the Tribunal lost sight of this fact.
We are, however, informed that the respondent subsequent ly 563 acquired another degree in M.A. with second class and has qualified herself to be appointed to the said post.
Whatever the merits of the decision given by the Tribunal, we cannot forget that she was entitled to rely upon it till this time where she had succeeded.
She was not allowed to join service on January 2, 1986 and thereafter she had approached the,Tribunal in January 1987.
The decision of the Tribunal was of 31st August, 1987 and thereafter the present Civil Appeal was pending in this Court from December 1987 till this day.
Considering the fact that she is compelled to serve, that she has acquired the requisite qualification, that today she may be overaged for the post and the further fact that many who were underqualified were appointed to the post earlier, we feel that it will be unjust to deprive her of the post at this stage.
We, therefore, set aside the impugned order of the Tribunal but allow the appeal partial ly and direct that the respondent should be appointed in the post from the beginning of the ensuing academic year 1990 91.
Since Shri Madhav Reddy contended that there is no vacant post at present, we further direct that, if neces sary, a post be created to accommodate her.
She will, howev er, not be entitled to any benefits including back wages till her appointment.
The parties will bear their own costs.
N.V.K. Appeal allowed.
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Pursuant to a newspaper advertisement by the State Government calling for applications for Grade I and Grade II teacher posts (Post Graduate Teacher and Trained Graduate Teachers) the respondent in the appeal applied for the same.
The qualification prescribed in the advertisement was a second class degree in M.A.
However, the respondent who held a third class degree in M.A. was selected, and an order was issued appointing her as a Post Graduate Teacher in Hindi, subject to the production of original certificates, and compliance with the other necessary formalities.
When the respondent approached the authorities with her certificates, it was noticed that she was not qualified for the post, and was, therefore, not allowed to join service.
The respondent approached the State Administrative Tribunal for relief, which held that the appellants had issued the order of appointment knowing fully well that she was not qualified, and that she was selected for appointment because there was no other candidate available with better marks, and passed an Order directing the appellants to allow the respondent to join duty and pay her salary from the date she reported for duty.
The appellants appealed to this Court.
Allowing the appeal, HELD: 1.
When an advertisement mentions a particular quali fi 560 cation and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned.
The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the adver tisement.
[562F] 2.
It amount to a fraud on the public to appoint persons with inferior qualifications unless it is clearly stated in the advertisement that the qualifications are relaxable.
[562G] 3.
No Court should be a party to the perpetuation of the fraudulent practice.
The State Administrative Tribunal lost sight of this fact in the instant case.
[562G] 4.
It is common knowledge that sometimes either by mistake or otherwise the notes put up before the Selection Committee contain erroneous data prepared by the office and sometimes the Selection Committee proceeds on the basis that all those who appear before it, are otherwise qualified.
However, the second stage at which the documents are scruti nised is when the higher authorities go through them at the time the candidate concerned approaches them for resuming duties alongwith the original certificates.
It is at that stage that the mistake in the instant case was discovered, and the respondent was not permitted to resume her duties.
There is nothing wrong in such action.
[562B C] [The Court felt it would be unjust to deprive the re spondent of the post at this stage, as she had subsequently acquired another degree in M.A. with second class and there by qualified herself to be appointed, that she may be over aged for the post and many who were underqualified were appointed to the post earlier, and directed that she be appointed in the post from the beginning of the academic year 1990 1991.] [563B C]
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tion (Civil) Nos.
13003 of 1985, 1303 of 1987 and 302 of 1989.
(Under Article 32 of the Constitution of India) 437 Subhash Sharma Petitioner in person.
M.S. Ganeshan, Ms. M. Karanjawala (N.P.), H.S. Anand, P.H. Parekh and Ms. Sunita Sharma for the Petitioners.
Ashok Desai, Solicitor General, Ms. A. Subhashini, P.S. Poti, K.R. Nambiar, (For Kerala), Probir Chowdhury (For Assam), A.K. Panda (For Orissa), Ms. G.S. Misra, H.K. Puri, T.V.S.N. Chari (For Bihar), S.K. Agnihotri (For Madhya Pradesh), Ms. Kamini Jaiswal (For Chandigarh), Ms. section Dik shit (For U.P.), V. Krishnamurthy (For Tamil Nadu), B. Parthasarthi (For Andhra Pradesh), Ms. Urmila Kapoor & Ms. section Janani (For Manipur), Aruneshwar Gupta, M.N. Shroff (For Gujarat).
Mahabir Singh (For Haryana), A.S. Bhasme (For Maharashtra), I. Makwana (For Rajasthan), Ms. Urmila Kapur (For Manipur) and M. Veerappa (For Karnataka) the Respond ents.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
These are applications under Arti cle 32 of the Constitution.
The first petition is by an advocate practising in this Court; the second by the Supreme Court Advocates on Record Association and the last by the Honorary Secretary of the Bombay Bar Association.
These applications are in the nature of public interest litiga tion.
The relief asked for is one for mandamus to the Union of India to fill up the vacancies of Judges in the Supreme Court and the several High Courts of the country and ancil lary orders of directions in regard to the same.
The peti tion from Bombay is confined to the relief of filling up of vacancies in the Bombay High Court.
Since common please were advanced and the relief sought was of similar nature, these applications have been clubbed together and heard from time to time.
In response to the rule, the Union of India took the stand through the Attorney General that the petitions were not maintainable and the filling up of the vacancies in the superior courts was not a justiciable matter.
Reliance was placed on the decision of this Court in the case ' of S.P. Gupta vs Union of India, [1982] 2 SCR 365.
The objection raised by the learned Attorney General was overruled by the Court by drawing a distinction between fixing the Judge strength in the Courts or selection of judges on one side and the filling up of vacancies on the basis of sanctioned strength on the other.
This Court as an interim measure took the view that while the ratio in S.P. Gupta 's case left the matter of fixing up of the Judge strength to the President of India under the constitutional scheme, and the choice of Judges to the 438 prescribed procedure, once the sanctioned strength was determined it was the obligation of the Union of India to maintain the sanctioned strength in the superior Courts and these cases were allowed to proceed.
Mr. Soli Sorabjee, the succeeding Attorney General, withdrew the objection regarding this Court 's jurisdiction and made a statement that he was of the view that it was the constitutional obligation of the Union of India to provide the sanctioned Judge strength in the superior courts and the default, if any, was a matter of public interest and the writ petitions requiring a direction to the Union of India to fill up the vacancies were maintainable.
I The superior judiciary is divided into the Union Judici ary covered by Chapter 4 of Part V and the High Courts in the States are covered by Chapter 5 of Part VI of the Con stitution.
Article 124(1) of the Constitution provides: "There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law pre scribes a larger number, of not more than seven other Judges." From time to time the Judge strength in the Supreme Court has been expanded and by the Supreme Court (Number of Judges) Amendment .
Act, 1986 (22 of 1986), the existing number has been fixed at 25 apart from the Chief Justice.
Article 2 14 provides: "There shall be a High Court for each State.
" But there are 18 High Courts in all on account of the fact that the High Court at Guwahati exercises jurisdiction over six States including Assam; the High Court at Chandigarh is common for the States of Punjab and Haryana and the juris diction of the High Court of Bombay extends over Goa.
There is High Court at Delhi though the mandate of Article 2 14 does not apply.
Article 2 16 provides: "Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.
" 439 From time to time administratively the Judge strength of the different High Courts has been retired.
At the time these matters were first placed before us the total strength was 462 but later it has been enhanced to 470.
The enhancement has been on account of the fact that in the Judge strength of the High Courts of Calcutta,.
Himachal Pradesh, Karnata ka, Madras and Rajasthan had ten additions in all and the sanctioned strength of the Kerala High Court was reduced by two.
There was a time during the pendency of these writ petitions affidavit filed before this Court on behalf of the Ministry of Law & Justice the position as on 20th of Febru ary, 1990, showed that as against the sanctioned strength of 462,368 had been filled up and the vacancies were 94 in all.
By 16.8.1980, the sanctioned strength had gone up to 470 and as against these, 440 appointments had been made.
The total posts to be filled up were 30 in number 19 being permanent and 11 additional vacancies.
We gather that by now some more appointments have been made and the number of unfilled posts has been reduced to around 22.
These cases were adjourned from time to time with inter im directions calling upon Union of India to fill up the vacancies within specified dates.
As a result of monitoring by the Court by interim directions in these petitions, the position has somewhat eased but 22 vacancies still remain to be filled up.
With retirements and other cognate processes the number of vacancies keeps increasing from time to time.
We had made it clear to the learned Attorney General at the several interlocutory hearings that these petitions and the Court 's directions have nothing to do with the actual selection of particular Judges to be appointed in the vacan cies and that was a matter exclusively within the domain of the constitutional scheme and concern of the concerned constitutional functionaries.
These petitions are concerned with the filling up of vacancies and discharge of the con stitutional obligation of the Union of India to the nation in that behalf.
We may point out that filing of these writ petitions and the proceedings of the Court have helped the Union of India to fill up the vacancies to a considerable extent by making the various constitutional authorities con scious of the urgency of problem and of their responses.
We have noticed the fact that while the process of filling up of vacancies was considerably slow prior to the general election held in November, 1989, there has been an improve ment in the process from January this year.
We have, howev er, not been able to appreciate the stand taken 440 in some of the affidavits of the Union of India that as the place and process of appointments has been expedited, the writ petitions be taken to have served their purpose and do not survive.
We recall several occasions when our interim directions were received not with any conspicuous enthusiasm and other occasions when inspite of assurance and undertak ings no progress was noticed.
II For more than six scores of years High Courts have been functioning in this country.
Earlier appeals lay from the High Courts to the Privy Council in certain situations.
Under the Government of India Act, 1935, a Federal Court was stipulated which started functioning from 1937.
With Inde pendence of India in 1947, the jurisdiction of the Privy Council got repealed.
Our Constitution provided for a Su preme Court for the entire country and a High Court for every State.
The superior judiciary in India now, therefore, consists of the Supreme Court and the High Courts.
Article 50 in Part IV of the Constitution required the State to take steps to separate the Judiciary from the Executive in the public services of the States.
By now that has been done.
The constitutional scheme postulates Rule of Law and inde pendence of the judiciary.
With a view to providing the same as an indispensable factor for the sustenance of the demo cratic pattern of society, provisions have been made in the Constitution.
The Preamble of our Constitution stipulates justice social, economic and political for all citizens of India.
It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice.
The Judiciary therefore be comes the most prominent and outstanding wing of the Consti tutional System for fulfilling the mandate of the Constitu tion.
For its sound functioning, it is, therefore, necessary that there must be an efficient judicial system and one of the factors for providing the requisite efficiency is ensur ing adequate strength.
For Rule of Law to prevail, judicial independence is of prime necessity.
Dr. Robert MacGregor Dawson, speaking about individual independence of Judges once said: "The Judge must be made independent of most of the re straints, checks and punishments which are usually called into play against other public officers . . .
He is 441 thus protected against some of the most potent weapons which a democracy has at its command: he receives almost complete protection against criticism; he is given civil and criminal immunity for acts committed in the discharge of his duties; he cannot be removed from office for any ordinary offence, but only of misbehaviour of a flagrant kind, and he can never be removed simply because his decisions happen to be disliked by the Cabinet, the Parliament, or the people.
Such independence is unquestionably dangerous, and if this free dom and power were indiscriminately granted the results would certainly prove to be disastrous.
The desired protec tion is found by picking with special care the men who are to be entrusted with these responsibilities, and then para doxically heaping more privileges upon them to stimulate their sense of moral responsibility, which is called in as a substitute for the political responsibility which has been removed.
The Judge is placed in the position where he has nothing to loss by doing what is right and little to gain by doing what is wrong; and there is therefore every reason to hope that his best efforts will be devoted to the conscien tious performance of his duties." In Bradley vs Fisher, ; (1871) it was pointed out: "Our judicial system is guided by the principle that a judicial officer, in exercising the authority vested in him must be free to act upon his own convictions, without appre hension of personal consequences to himself.
" For the availability of an appropriate atmosphere where a Judge would be free to act according to his conscience it is necessary, therefore, that he should not be over burdened with pressure of work which he finds it physically impossi ble to undertake.
This necessarily suggests that the Judge strength should be adequate to the current requirement and must remain under constant review in order that commensurate Judge strength may be provided.
Within a few years of functioning under the aegis of the Constitution our people started realising that there was backlog in courts and the same was on rapid and constant increase.
The Law Commission in its 14th Report in Septem ber, 1958, dealt with the question adequacy of judicial strength as a matter of special importance.
It pointed out: 442 "The fundamental rights conferred by the Constitution and resort to the remedies provided for their enforcement have contributed largely to the increase in the volume of work in the High Courts.
Applications for the enforcement of funda mental rights, applications seeking to restrain the usurpa tion of jurisdiction by administrative bodies and applica tions or suits challenging the constitutionality of laws have made large additions to the pending files of the High Courts.
It has to be observed that many laws have come in for challenge in the courts on the ground of their incon sistency with the Constitution.
The complexity of recent legislation has resulted in a large number of novel and difficult questions having been brought before the High Courts.
Their decision have not only taken longer time but have led not infrequently to reference to Full Benches which necessarily divert the available judge power from what may be called normal judicial work.
As a result of this large addition to their work, the disposal of ordinary civil and criminal work in the High Courts has suffered very consider ably.
This increase of work and its specially difficult and novel character can well be regarded as an important cause of the accumulation of old cases.
" The Law Commission emphasised the position by further say ing: "Governments could not have been unaware, at any rate from 1950 onwards, that the files of the High Courts were being loaded with a large amount of additional work.
The large number of writ applications and applications questioning the constitutionality of enactments and rules flamed thereunder must have come directly to the notice of the Governments.
Responsible persons cannot also have failed to notice that the disposal of these complicated and in a sense novel matters consumed a great deal of the time of the High Courts which had the natural consequence of clogging the normal and usual work.
" Inspite of highlighting of the position by the Law Commission and the warning administered by it, the process of providing adequate judge strength commensurate with the volume of litigation has been usually slow.
Subsequent reports of the Law Commission have referred to this aspect.
443 The Commission took note of the position that due con sideration was not being bestowed upon the administration of justice and the importance of the subject was not realised by the Executive authorities.
Lack of adequate financial provision and absence of appropriate funding of schemes for improvement often led to abandonment of contemplated whole some measures and made long term planning difficult.
In fact, the plea from several relevant quarters that `Adminis tration of Justice ' should be treated as a `plan subject ' has not been entertained all these years.
It has been so more on account of lack of appropriate appreciation of the importance of the matter than anything also.
Lord Denning of the Preface to the Law in Crisis by Professor C.G. Weera Mantry has said: "We are passing through a critical moment in the history of mankind.
Civilised society appears to be disintegrating.
Minorities openly defy the law for their own ends.
Terror ists seize hostages and threaten to kill them.
Workmen set up picket hives outside power stations and threaten to bring the country to a standstill.
Students occupy buildings and prevent the running of their universities.
Only too often their threats succeed.
The peaceful majority give in.
They surrender.
Moral and spiritual values, too, appear to be at a low ebb.
The sanctions of religion have lost their force.
Schools and teachers take much interest in social sciences.
They explain how people behave.
They seek to help the mis fits.
But they do not set forth standards of conduct.
They do not tell people how to behave.
The only discipline to do this is the discipline of law.
It is the law which teaches that men must not resort to violence to obtain their ends; that they must keep their promises; they must not injure their neighbours and they must act fairly.
The law covers the whole range of human behaviour and says what men must do and must not do . .
Law which is the very foundation of the civilized society is in peril.
" Sir Frederick Pollock in one of his lectures pointed out that long indifference to the legal system and to all that goes with it is the result of many generations of neglect in communicating to the layman some understanding of the very ground work of the legal system under which 444 he spends his life.
Religion, politics, art, literature all these are taught as part of general education, but not the fundamentals concerning the administration of law, nor the history of liberty nor the need for public vigilance over its legal system.
It is not surprise that faith and confi dence in the law are steadily declining and legal systems, by and Large, are losing their base of popular support on which they must ultimately rely.
We are living in an age when all traditional institu tions are under scrutiny, suspicion and challenges of reas sessment.
If the current mood of disillusionment infects the core of the law and its institutions, we may have lost our last opportunity for the preservation of freedom under the Law.
It is, therefore, a matter for immediate attention of all concerned and of Government in particular that the need is recognised and the Administration of Justice is made a plain subject and given appropriate attention.
It is true that the number of High Courts compared to 1950 has increased in later years.
It is also true that the Judge strength has been increased.
It is, however, equally true that the enhancement has not been commensurate.
After a lot of exercise, per year disposal per Judge of main cases has been fixed at 650.
If this be the basis, perhaps no High Court in India excepting that for Sikkim has adequate judge strength.
e gather that the Kerala High Court where the sanc tioned strength has been reduced by 2, has a sanctioned strength 22 while its pendency as on 1.1. 1990 being 34,330 cases justifies a Judge strength of almost 50 on the basis of the measure of 650 cases per Judge per year.
We intend to indicate that there was no justification for reduction of the sanctioned strength.
We are alive to the position that in S.P. Gupta 's case this aspect has been held to be not justiciable.
We do not agree with the opinion expressed by the majority on this aspect and are of the opinion that that aspect requires reconsideration.
For the present we suggest to Government that the matter should be reviewed from time to time and steps should be taken for determining the sanctioned strength in a pragmatic way on the basis of the existing need.
If there be no correlation between the need and the sanctioned strength and the provision of judge manpower is totally inadequate, the necessary consequence has to be backlog and sluggish enforcement of the Rule of Law.
445 III Another reason directly contributing to backlog and its increase is the non filling up of the sanctioned vacancies.
Under the traditional process followed the matter, steps for filling up of vacancies have been initiated by the Chief Justice of the High Court six months in advance of the occurrence of the vacancy.
The date of retirement of a Judge is known on the date he enters office unless vacancy is caused by resignation, removal by impeachment or death.
Apart from these eventualities, the date of vacancy in the post being known for years before there can really be no justifiable excuse for inaction in the initiation of steps for filling up the vacancy well in advance of its actual occurrance.
The existing scheme of appointment involves a process of consultation with the Chief Justice, the Governor of the State, the Chief Justice of India before the Presi dent of India makes the appointment.
The involvement of the Governor brings in the Chief Minister and Presidential action involves the Central Government.
If, however, every functionary associated with the process remains cognisant of the constitutional obligation involved in the matter we see no justification as to why for selection of the incumbent more than 3 to 4 months should be necessary.
The system should be so perfect and smooth that with the retirement of one Judge his successor should be ready to step in and by this process not a day 's judge strength should be lost to a High Court.
The question of appointment of Judge was the subject matter of the 80th Report of the Law Commission.
It referred to its earlier Report (1979) where it was said: "As mentioned earlier, though the sanctioned judge strength of the High Courts in the country during the year 1977 was 352, only 287 judges on an average were in position.
Like rise, in the year 1976, even though the sanctioned strength was 351, only 292 judges were in position.
Leaving aside the judges who were entrusted with work outside their normal duties, the fact remains that the number of judges in posi tion in both the years was less than the sanctioned strength.
This disparity between the sanctioned strength, and the number of judges in position was apparently due to the fact that vacancies in the post were not filled in as soon as they occurred.
It is our considered opinion that delay in filling in the vacancies is one of the major con trolling factors reasonsible for the filling accu 446 mulation of arrears.
In our opinion, when a vacancy is expected to arise out of the retirement of a judge, steps for filling in the vacancy should be initiated six months in advance.
The date on which such a vacancy will normally arise is always known to the Chief Justice of the High Court and also to others concerned.
It should be ensured that necessary formalities for the appointment of a Judge to fill the vacancy are completed by the date on which the vacancy occurs.
" Several other reasons contributing to the non filling up of vacancies were brought to the fore in the Report.
Obviously, the reports furnished by the Law Commissions from time to time have not received adequate consideration in the hands of the appropriate authorities and administration of justice has not received its due attention.
This has resulted in the_ obstinate problem of backlog.
Prolongation of litigation is perhaps a necessary evil of our type of adjudicatory system.
Dacon (Law Tracts) listed the grievances of his times against the laws of England and the Justice system in the following way: "Certain it is that our laws, as they now stand, are subject to great uncertainties, and variety of opinion, delays and evasions whereof ensueth: (i) that the multiplicity and length of suits in great; (ii) that the contentious person is armed and the honest subject wearied and oppressed; (iii) that the judge is more absolute, who, in doubtful cases, hath a greater scope and liberty; (iv) that the chancery courts are more filled, the remedy of law being often absent and doubtful; (v) that the ignorant lawyer shroudeth his ignorance of law, in that doubts are frequent and many; and (vi) that men 's assurances of their lands and estates by patents, deeds, wills are often subject to question and hollow . . " Bacon 's description to a considerable extent represents even today 's situation.
The volume of litigation has in creased while there has been no commensurate expansion of the adjudicatory machinery.
When interim directions made in these cases were not yielding results, the Attorney General mentioned to us on repeated occasions that the consultations were taking time.
Very often, while the Chief 447 Justice of the High Court had made his recommendation, the response from the Chief Minister through the Governor of the State was not forthcoming, he used to say.
Repeated reminders were being sent from the Union Government and they went unheaded.
On one occasion to meet the stalemate we had indicated in an interlocutory order that a time frame must be set for the response of the constitutional authority in the State and if there was no response forthcoming within the time, the Union of India should be in a position to proceed with the recommendation of the Chief Justice of the High Court.
That even bore no fruit.
Backlog in Courts has become a national problem.
The adjudicatory process is being blamed for the equalling itself to the challenge of the times.
There is a general complaint that the judicial system is on the verge of col lapse.
It is, therefore, the obligation of the constitution al process to keep the system appropriately manned.
We have found no justification for the sluggish move in such an important matter.
We may, at this stage, advert to the Constitution (Sixty Seventh Amendment) Bill, 1990, which is pending before the Parliament.
In the statement of objects and reasons of this Bill, it has been stated: "The Government of India have in the recent past announced their intention to set up a high level judicial commission, to be called the National Judicial Commission for the ap pointment of Judges of the Supreme Court and of the High Courts and the transfer of Judges of the High Courts so as to obviate the criticisms of arbitrariness on the part of the Executive in such appointments and transfers and also to make such appointments without any delay.
The Law Commission of India in their 121st Report also emphasised the need for a change in the system.
" This part of the statement obviously accepts the posi tion that Government are satisfied that there is basis for criticism of the arbitrariness on the part of the Executive and the modality adopted following S.P. Gupta 's ratio has led to delay in the making of appointments which the Consti tutional Amendment seeks to eliminate.
From the affidavits filed by the Union of India and the statements made by learned Attorney General on the different occasions when the matter was heard.
We found that the Union Government had 448 adopted the policy of reopening recommendations even though the same had been cleared by the Chief Justice of India on the basis that there had in the meantime been a change in the personnel of the Chief Justice of the High Court or the Chief Minister of the State.
The selection of a person as a Judge has nothing personal either to the Chief Justice of the High Court or the Chief Minister, of the State.
The High Court is an institution of national importance wherein the person appointed as a Judge functions in an impersonal manner.
The process of selection is intended to be totally honest and upright with a view to finding out the most suitable person for the vacancy.
If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinari ly be any justification for reopening the matter merely because there has been a change in the personnel of the Chief Justice or the Chief Minister of the State concerned.
We intend to make it clear that this has to be the rule and the policy adopted by the Union of India as has been indi cated to us in Court by the learned Attorney General should immediately be given up.
In the functioning of public of fices there is and should be a continuity of process and action and all objective decisions taken cannot be trans formed into subjective issues.
That being the position, .recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected with the mere change of the Chief Justice or the Chief Minister justifying the same should not be reopened and if in a given case the Union of India is of the view that the matter requires to be looked into again a reference should be made to the Chief Justice of India and there can be a fresh look at the matter only if the Chief Justice of India permits such a review of the case.
In fact, as an interim measure we had indicated that this should be the position but we find that steps contrary to the expression of this opinion have been taken.
That is why we have found it necessary to re state the opinion.
Government shall take appropriate action in accordance with this principle.
IV An independent non political judiciary is crucial to the sustenance of our chosen political system.
The vitality of the democratic process, the ideals of social and economic egalitarianism, the imperatives of a socio economic trans formation envisioned by the constitution as well as the Rule of law and great values of liberty and equality are all dependent on the tone of the judiciary.
The quality of the 449 judiciary cannot remain unaffected, inturn, in the process of selection of Judges.
Some of the important aspects of selection and appoint ment of Judges fell for debate before a seven judge bench in S.P. Gupta 's case [1982] 2 SCR 365.
The controversy was triggered off by a circular dated 13th March, 1981 issued by the Union Law Minister addressed to the Governor of Punjab and the Chief Ministers of the States referring to the desirability of one third of the judges of the High Courts, as for as possible, being from outside the State in the interest of `National Integration ' and "to combat narrow parochial tendency bred by caste, kinship and other local links and affiliations.
" The circular requested the Gover nor and the Chief Ministers to obtain from all the addition al judges working in the High Court in their respective States their consent to be appointed as permanent judges in the other High Courts of the country and also to obtain from persons who had already been, or may in the future be, proposed for initial appointment their consent to be ap pointed to any other High Court in the country.
The addi tional judges as well as the proposed appointees were also asked to name three High Court, in the order of preference, to which they would prefer to be so appointed as permanent judges.
The main issues that fell for consideration in the case were whether the said circular interfered with judicial independence; whether at all, and if so under what circum stances, a judge of High Court could be transferred to another High Court without his consent; and as to the crite ria on which an additional judge was entitled to be made permanent.
Several inciental issues such as whether the lawyers who brought the petitions had the requisite `stand ing to sue '; whether the records of the Government pertain ing to the appointment or non appointment of additional judges as permanent judges and to the transfer of judges were privileged from disclosure and, more importantly, the question as to the significance and status of the process of `consultation ' envisaged in the constitutional process of appointment of judges and the primacy of the position of the institution of the Chief Justice of India in the consulta tive process whether the opinion and advice of the Chief Justice of India was on the same significance as those of the other constitutional `functionaries viz., the Governor, the Chief Justice of the State who consulted in the matter also came to be debated.
In our opinion, the view expressed by four learned Judges whose views constituted the majority on the point the other three learned judges took a different view vitally affects the concept and values of judicial independence.
That case, indeed, traversed a wide ground and range of ideas.
450 Referring to that case a critical review published in the International and Comparative Law Quarterly [vol. 33 1984] said.
"In reaching these conclusions, members of the Court passed over much fascinating ground, and it gives intriguing in sight into the attitude of the Indian judiciary towards their own role and that of the Constitution in the context of India today.
Some of the most interesting observations are obiter, but that does not necessarily detract from their importance in the decision of a final court of appeal.
" The view taken by Bhagwati J., Fazal Ali J. Dasai J., and Venkataramiah J., to which we will presently advert, in our opinion, not only seriously detracts from denudes the prima cy of the position, implicit in the constitutional scheme, of the Chief Justice of India in the consultative process but also whittles down the very significance of "consulta tion" as required to be understood in the constitutional scheme and context.
This bears both on the substance and the process of the constitutional scheme.
The constitutional phraseology would require to be read and expounded in the context of the constitutional philosophy of separation of powers to the extent recognised and adumbrated and the cherished values of judicial independence.
Consistent with the constitutional purpose and process it becomes imperative that the role of the institution of the Chief Justice of India be recognised as of crucial importance in the matter of appointments to the Supreme Court and the High Court of the States.
We are of the view that this aspect dealt with in Gupta 's case requires re consideration by a larger bench.
The points which require to be re considered relate to and arise from the views of the majority opinion touching the very status of "consultation" generally and in particu lar with reference to "consultation" with Chief Justice of India and, secondly, as to the primacy of the role of the Chief Justice of India.
The content and quality of consulta tion may perhaps vary in different situations in the inter action between the executive and the judicial organs of the State and same aspects may require clarification.
There is yet another aspect as to the right to initiate the appointments of Judges.
In regard to this aspect, in practice, there appears to have been a distortion of the scope of the observations of the majority, even to the extent these observations go.
The statement that there should be no embargo on the State executive initiating the proposal for appointments goes with the qualification that the State executive can 451 not send its proposals directly to the Union Government but should first send it to the Chief Justice of the State.
Desai J., clearly and unambiguously qualified this right of the executive thus: ".
Similarly, mere could not be a blanket embargo on the State executive initiating the pro posal.
We agree that the State executive should not make its own recommendation and forward it directly to the Centre.
The State executive initiating the proposal must first forward it to the Chief Justice of the High Court who would be better informed about the practising advocates as well as the District Judges subordinate to the High Court, and seek the views of the Chief Justice.
The view of both may be forwarded to the Chief Justice of India . . " (Emphasis Supplied) But it has been mentioned that a practice is sought to be developed where the executive Government of the State sends up the proposals directly to the Centre without refer ence to the Chief Justice of the State.
This is a distortion of the constitutional scheme and is wholly impermissible.
So far as the executive is concerned, the `right ' to initiate an appointment should be limited to suggesting appropriate names to the Chief Justice of the High Courts or the Chief Justice of India.
If the recommendation is to emanate di rectly from a source other than that of the Chief Justices of the High Courts in the case of the High Courts and the Chief Justice of India in the case of both the High Courts and the Supreme Court it would be difficult for an appropri ate selection to be made.
It has been increasingly felt over the decades that there has been an anxiety on the part of the Government of the day to assest its choice in the ulti mate selection of Judges.
If the power to recommend would vest in the State Government or even the Central Government, the picture is likely to be blurred and the process of selection ultimately may turn out to be difficult.
Returning to the views of the majority, we may set out the views of these learned Judges in the Judgment as to "consultation" and primacy of the position of the Chief Justice of India which would, in our opinion, require re consideration.
Referring to `Consultation ' in Article 1 24(2) and 217(1) Bhagwati, said: " .
Iris obvious on a plain reading of clause (2) of Article 124 that it is the President, which in effect and substance means the Central Government, which is empowered by the 452 Constitution to appoint Judges of the Supreme Court .
It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Courts and of the Supreme Court as the Central Government may deem it neces sary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government . " " .
But, while giving the fullest meaning and effect to `consultation ', it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Government and consultation cannot be equated with concurrence . .
It would therefore be open to the Central Government to over ride the opinion given by the constitutional function aries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court . . .
Even if the opinion given by all the constitutional functionaries con sulted by it is identical, the Central Government is not bound to act in accordance with such opinion . " (emphasis supplied) [See: , 541,542] As to the primacy of the position of Chief Justice of India, the learned Judge observed: " .
It was contended on behalf of the petitioners that where there is difference of opinion amongst the constitu tional functionaries required to be consulted, the opinion of the Chief Justice of India should have primacy, since he is the head of the Indian Judiciary and pater families of the judicial fraternity.
We find ourselves unable to accept this contention . .
Article 217 places all the three constitutional functionaries on the same pedestal so far as the process of consultation is concerned.
(emphasis supplied) "It is therefore, clear that where there is difference of 453 opinion amongst the constitutional functionaries in regard to appointment of a Judge in a High Court, the opinion of none of the constitutional functionaries is entitled 10 primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight, the Central Government is entitled to come to its own decision as to which opinion it should accept in deciding whether or not to appoint the particular person as a Judge . . " (emphasis supplied) [See: and 545] Certain observations of Fazal Ali J., on judicial inde pendence, indeed, reflect the state of acute poverty and ignorance of the large masses of Indian society and the consequent lack of awareness on their part of the niceties of the controversy and the general air of cynicism that degenerating standards in public life has engendered in them.
Learned judge observed: "There is another fact of life which, however unpleasant, cannot be denied and this is that precious little are our masses or litigants concerned with which Judge is appointed or not appointed or which one is continued or not continued.
The high sounding concept of independence of judiciary or primacy of one or the other of the Constitutional function aries or the mode of effective consultation are matters of academic interest in which our masses are least interest . . "It is only a sizeable section of the intellectuals consisting of the press and the lawyers who have made a prestigious issue of the independence of the judiciary.
I can fully understand that lawyers or other persons directly connected with the administration of justice may have a grievance however ill rounded that improper selection of Judges or interference with the appointment of Judges strictly according to constitutional provisions may mar the institution of judiciary and therefore they may to some extent be justified in vindicating their rights.
But at the same time, however, biting or bitter, distasteful and dia bolical it may seem to be, the fact remains that the masses in general are not at all concerned with these legal nice ties and so far as 454 administration of justice is concerned they merely want that their cases should be decided quickly by Judges who generate confidence. " (emphasis supplied) [See: But it is only through the great institutions of democ racy, political statesmanship and the activist role of the judiciary that the much needed socio economic transformation from a fuedal and exploitative society to an egalitarian social and economic order of a true welfare state that the Constitution dreams of, can emerge.
Political observers `see that despite object poverty and squalor amongst large sec tions of Indian masses, they manifest such rare intuitive political acumen, insight and sagacity which has sustained the democratic spirit that there is no justification for any cynical pessimism.
Even if the assumption that large sec tions of the people are not be able to appreciate the con stitutions niceties is true, that, by itself, does not detract from the necessity to maintain the highest standards of judicial independence.
On the contrary the need becomes all the greater.
Desai J., contemplated "Value packing" on the premise that a preponderant role for the judicial wing in the ap pointments raises a question of essential political doctrine that the very power of Judicial Review, with the concomitant jurisdiction to defeat the will of the people by striking down laws enacted by the people 's representatives, would be essentially an undemocratic process, a fortiori where there is no elective element in the appointment of judges.
Certain observations of Prof. Schwartz were referred to in this behalf.
On the same topic Venkataramiah, J. said: "In India we have adopted the procedure contained in Article 2 17(1) of the Constitution for the appointment of judges of the High Courts . .
This method appears to have been adopted so that the appointment of judges may have ultimate ly the sanction of the people whom the Council of Ministers represent in a parliamentary form of Government.
In that way only the judges may be called people 's judges.
If the ap pointment of judges is to be made on the basis of the recom mendation of judges only then they will be Judges ' judges and such appointments may not fit into the scheme of popular democracy.
" 555 [See: "The position of the Chief Justice of India under Article 2 17(1) however is not that of an appellate authority or that of the highest administrative authority having the power to overrule the opinion of any other authority.
From the spe cific roles attributed to each of them as explained above, which may to some extent be Overlapping also, it cannot be said that the Chief Justice of India has been given any position of primacy amongst the three persons who have to be consulted under Article 217(1) of the Constitution.
There are no express words conveying that meaning.
The President has to take into consideration the opinions of all of them and he should not accept the opinion of any of them only on the sole principle of primacy. . " [See: This, indeed, has the familiar ring of the controversy arising out of the judicial response of the Supreme Court of the United States to the "New Deal" legislation.
The strik ing down of the minimum wage law as unconstitutional trig gered an impassioned debate as to the very doctrinal justi fiability of Judicial Review and said to have led the Ameri can President to contemplate "Court packing".
That, subse quently the court gave a clean bill of health to the "New Deal" legislation is part of judicial history of that coun try.
Certain observations of Prof. Schwartz referred to by Desai J as the learned author 's own views to the contrary indicate are not apposite in the context in which the learned judge sought to invoke them.
The learned author, even in the American context, reiterated the imperative of Judicial Review to make "the provisions of a constitution more than mere maxims of political morality" and that "the universal sense of America has come to realise that there can be no constitution without law administered through the Supreme Court".
Referring to Chief Justice Marshall 's pro nouncement in the Marbury case, the learned author said: "That case is now rightly considered as the very keystone of the American constitutional arch, for, in it, the U.S. Supreme Court first ruled that it possessed the authority to review the constitutionality of statutes.
Yet, when the case came before the Supreme Court, it seemed to present any 456 thing but the question of judicial review." "Marbury vs Madison is crucial in the history of American public law because it laid down the doctrine of judicial review which has since been the foundation of the constitutional structure.
Marbury vs Madison was the first case to establish the Supreme Court 's power to review the constitutionality of legislative acts and it did so in terms so firm and clear that the power has never since been legal ly doubted.
Had Marshall not confirmed review power at the outset in his magisterial manner, it is entirely possible it would never have been insisted upon, for it was not until 1857 that the authority to invalidate a federal statute was next exercised by the U.S. Supreme Court.
Had the Marshall Court not taken its stand, more than sixty years would have passed without any question arising as to the omnipotence of Congress.
After so long a period of judicial acquiescence in Congressional supermacy, it is probable that opposition then would have been futile." [See: "Some makers of American Law"; Tagore Law Lectures pages 32 & 34] Referring to the dilemma of political theorists whether assumption by the Marshall Court of review power was justi fied by the constitution or was an act of judicial usurpa tion the learned author says: " .
Those who urge the latter position lose sight of the fact that Marbury vs Madison Merely confirmed a doctrine that was part of the American legal tradition of the time, derived from both the colonial and revolutionary experience.
One may go further.
Judicial review was the inarticulate major premise upon which the movement (discussed in my last lecture) to draft Constitutions and Bills of Rights was ultimately based.
The doctrine of unconstitutionality had been asserted by Americans even before the first written Constitutions, notably by James Otis in his 1761 attack on general writs of assistance and by Patrick Henry in 1763 when he challenged the right of the Privy Council to disal low the Virginia Two penny Act.
The Otis Henry doctrine was a necessary foundation, both for the legal theory underlying the American Revolution and the Constitutions and Bills of Rights it produced.
457 "Addressing the court in the Five Knights ' case (one of the great state trials of Stuart England), the AttorneyGeneral, arguing for the Crown, asked, "Shall any say, The King cannot do this? No, we may only say, He will not do this." It was precisely to insure that in the Ameri can system one would be able to say, "The State cannot do this," that the people enacted a written Constitution con taining basic limitations upon the powers of government.
Of what avail would such limitations be, however, if there were no legal machinery to enforce them? Even a Constitution is naught but empty words if it cannot be enforced by the courts.
It is judicial review that makes constitutional provisions more than mere maxims of political morality." (emphasis supplied) [See: "Some makers of American Law"; Tagore Law Lectures pages 35 & 37] In India, however, the judicial institutions, by tradition, have an avowed a political commitment and the assurance of a non political complexion of the judiciary cannot be divorced from the process of appointments.
Constitutional phraseology of "consultation" has to be understood and expounded con sistent with and to promote this constitutional spirit.
These implications are, indeed, vital.
The constitutional values can not be whittled down by calling the appointments of judges as an executive act.
The appointment is rather the result of collective, constitutional process.
It is a par ticipatory constitutional function.
It is, perhaps, inappro priate to refer to any `power ' or `right ' to appoint judges.
It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories.
The executive, on whose advice the President acts, as a participant in the process has its own important and effective rule.
To say that the power to appoint solely vests with the executive and that the executive after bestowing such consideration on the result of consultations with the judicial organ of the State, would be at liberty to take such decision as it may think fit in the matter of appointments, is an over simplification of a sensitive and subtle constitutional sentence and, if allowed foul play, would be subversive of the doctrine .of judicial independ ence.
What Endmond Burke said is to be recalled: "All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to 458 the one great Master; Author and Founder of Society.
" The word "consultation" is used in the constitutional provision in recognition of the status of the high constitu tional dignitary who formally expresses the result of the institutional process leading to the appointment of judges.
To limit that expression to its literal limitations, shorn of its constitutional background and purpose, is to borrow Justice Frankfurther 's phrase, "to stick in the bark of words".
Judicial Review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional policy.
This essential constitutional doctrine does not by itself justify or necessitate any primacy to the executive wing on the ground of its political accountability to the electorate.
On the contrary what is necessary is an interpretation sustaining the strength and vitality of Judicial Review.
It might under certain circum stances be said that Government is not bound to appoint a judge so recommended by the judicial wing.
But to contem plate a power for the executive to appoint a person despite his being disapproved or not recommended by the Chief Jus tice of the State and the Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise of power.
Then again, whatever there might be difference of opinion between the Chief Justice of a State and the Chief Justice of India some of the weighty reasons in this behalf are set out by the other three judges in their opinion the opinion of the Chief Justice of India should have the preponderant role.
We are of the view that the primacy of the Chief Justice of India in the process of selection would improve the quality of selection.
The pur pose of the `consultation ' is to safeguard the independence of the judiciary and to ensure selection of proper persons.
The matter is not, therefore, to be considered that the final say is the exclusive prorogative of the executive Government.
The recommendations of the appropriate constitu tional functionaries from the judicial organ of the State has an equally important rule.
"Consultation" should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation.
Who is able to decide the qualities of lawyers proposed to be elevated to the Bench more than the Judges of the Superior Courts before whom they practice? There are preponderant and com pelling considerations why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its possession which may indicate that the appointment is otherwise undesirable.
459 The view which the four learned Judges shared, in Gup ta 's case, in our opinion, does not recognise the special and pivotal position of the .institution of the Chief Jus tice of India.
The correctness of the opinion of the majority in S.P. Gupta 's case relating to the status and importance of con sultation, the primacy of the position the Chief Justice of India and the view that the fixation of Judge strength is not justiciable should be re considered by a larger bench.
Indeed, the Union Government has quite often both before the Parliament and outside has stated that it has, as matter of policy, not made any appointments to the superior judici ary without the name being cleared by the Chief Justice of India.
This, indeed, would be the application of a standard of selection higher than envisaged by the majority opinion in S.P. Gupta 's case.
But if the executive sets up a stand ard by which it professes its actions to be judged it must be held to those standards.
This is to be done by a judicial recognition of the standard with a concomitant legal and constitutional obligation for the executive to adopt and apply the standard.
As we have already pointed out, the bulk of the vacan cies in the High Courts have been filled up.
Apart from two vacancies all other Judges in the Supreme Court are in position.
Learned Attorney General has assured us that prompt steps are being taken to fill up the remaining vacan cies and thereafter it will take steps to fill up the addi tional posts which have recently been created in the differ ent High Courts.
In view of what we have already stated and the assurance held out by the learned Attorney General we are of the view that further monitoring for the time being is not necessary.
As already pointed out the petition from Bombay was confined to filling up of vacancies in the Bombay High Court.
Excepting two, the remaining vacancies have been filled up and we have been told that steps are afoot for getting two Judges to the Bombay High Court.
We, therefore, dispose of the writ petition from Bombay with no further direction.
Similarly, the writ application filed by Subhash Sharma for the reasons indicated above may also be disposed of without further directions.
As and when necessary the matter can be brought before the Court.
As in our opinion the correctness of the majority view in S.P. Gupta 's case should be considered by a larger Bench we direct the papers of W.P. No. 1303 of 1987 to be placed before the learned Chief Justice for constituting a Bench of nine Judges to examine the two 460 questions we have referred to above, namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of Judge strength.
We are aware of the position.
that the setting up of the National Judicial Commission through a Constitutional Amend ment is in contemplation.
In the event of the Amendment being carried and a National Judicial Commission being set up, the correctness of the ratio in S.P. Gupta 's case of the status of the Chief Justice of India may not be necessary to be examined in the view of the fact that by the Amendment the Chief Justice of India would become the Chairman of the Commission.
In case the Commission is not constituted, the two questions indicated above which are of vital importance to the efficient functioning of the judicial system in the country require consideration and there is an element of immediacy in the matter.
We, therefore, suggest that the writ petition on the two issues indicated above maybe taken up for hearing at an early date and preferably before the end of this year.
We hope and trust that the Supreme Court Advocate on Record Association would continue to evince interest in the matter but if our expectations are belied, this being in the nature of a public interest litigation, some on interested in the restitution of the issues would be brought on record to effectively continue the proceeding and assist the Court.
We clarify that apart from the two questions which we have indicated, all other aspects dealt with by us are intended to be final by our present order.
There shall be no order for costs.
R, section S Petitions dis posed of.
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In these petitions in the nature of public interest litigation under Article 32 of the Constitution, the relief asked for is one for mandamus to the Union of India to fill the vacancies of Judges in the Supreme Court and the several High Courts of the country and ancillary orders or direc tions in regard to the relief of filling up of vacancies.
In response to the rule, the Union of India, relying upon S.P. Gupta vs Union of India, [1982] 2 SCR 365, raised a preliminary objection as to the justiciability of the issue.
The objection, however, was later withdrawn by the succeed ing Attorney General who made a statement that it was the constitutional obligation of the Union of India to provide the sanctioned Judge strength in the superior courts and default, if any, was a matter of public interest, and the writ petitions requiring a direction to the Union of India to fill up the vacancies were maintainable.
Disposing of the petitions, this Court, HELD: (1) The ratio in S.P. Gupta 's case left the matter of fixing Up Of the Judge strength to the President of India under the constitutional scheme, and the choice of Judges to the prescribed procedure, but once the sanctioned strength was determined it was the obligation of the Union of India to maintain the sanctioned strength in the superior Courts.
[437H; 438A] (2) It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice.
The Judiciary therefore be comes the most prominent and outstanding wing of the Consti tutional System for fulfilling the mandate of the Constitu tion.
434 For its sound functioning, it is necessary that there must be an efficient judicial system and one of the factors for providing the requisite efficiency is ensuring adequate strength.
[440E F] (3) For the availability of the appropriate atmosphere where a Judge would be free to act according to his con science it is necessary that he should not be over burdened with pressure of work which he finds it physically impossi ble to undertake.
This necessarily suggests that the judge strength should be adequate to the current requirement and must remain under constant review in order that commensurate Judge strength may be provided.
[441F G] Bradley vs Fisher, ; 1871, referred to.
(4) It is a matter for immediate attention of all con cerned and of Government in particular that the Adminis tration of Justice is made a plan subject and given appro priate attention.
[444C] (5) Backlog in Courts has become a national problem.
The adjudicatory process is being blamed for not equalling itself to the challenge of the times.
There is a general complaint that the judicial system is on the verge of col lapse.
It is, therefore, the obligation of the constitution al process to keep the system appropriately manned.
There is no justification for the sluggish move in such an important matter.
[447C D] (6) If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinarily be any justi fication for reopening the matter merely because there has been a change in the personal of the Chief Justice or the Chief Minister of the State concerned.
This has to be the rule and the policy adopted by the Union of India should immediately be given up.
[448B D] (7) In the functioning of public offices there is and should be continuity of process and action and all objective decisions taken cannot be transformed into subjective issues.
That being the position, recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected with the mere change of the Chief 435 Justice or the Chief Minister justifying the same should not be reopened and if in a given case the Union of India is of the view that the matter requires to be looked into again a reference should be made to the Chief Justice of India and there can be a fresh look at the matter only if the Chief Justice of India permits such a review of the case.
[448E F] (8) Consistent with the constitutional purpose and process it becomes imperative that the role of the institu tion of the Chief Justice of India be recognised as of crucial importance in the matter of appointments to the Supreme Court and the High Courts of the States.
This aspect dealt with in Gupta 's case requires re consideration by a larger bench.
[450E] (9) In India the judicial institutions, by tradition, have an avowed a political commitment and the assurance of a non political complexion of the judiciary cannot be divorced from the process of appointments.
Constitutional phraseology of "consultation" has to be understood and expounded consistent with and to promote this constitutional spirit.
These implications are, indeed, vital.
The constitutional values cannot be whittled down by calling the appointment of Judges as an executive act.
The appointment is rather the result of collective, constitutional process.
It is a participatory constitutional function.
It is, perhaps, inappropriate to refer to any `power ' or `right ' to appoint judge.
It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories.
[457D F] (10) The executive, on whose advice the President acts, as a participant in the process has its own important and effective role.
To say that the power to appoint solely vests with the executive and that the executive, after bestowing such consideration on the result of consultations with the judicial organ of the State, would be at liberty to take such decision as it may think fit in the matter of appointments, is an over simplification of a sensitive and subtle constitutional sentence subversive of the doctrine of judicial independence.
[457F G] (11) The word "consultation" is used in the constitu tional provision in recognition of the status of the high constitutional dignitary who formally expresses the result of the institutional process leading to the appointment of judges.
To limit that expression to its literal limitations, shorn of its constitutional background and purpose, is to borrow Justice Frankfurter 's phrase, "to stick in the bark of words".
[458B] (12) Judicial Review is a part of the basic constitutional structure 436 and one of the basic features of the essential Indian Con stitutional policy.
This essential constitutional doctrine does not by itself justify or necessitate any primacy to the executive wing on the ground of its political accountability to the electorate.
[458C] (13) It might under certain circumstances be said that Government is not bound to appoint a judge so recommended by the judicial wing.
But to contemplate a power for the execu tive to appoint a person despite his being disapproved or not recommended by the Chief Justice of the State and the Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise of power.
[458D E] (14) The purpose of the `consultation ' is to safeguard the independence of the judiciary and to ensure selection of proper persons.
The matter is not, therefore, to be consid ered that the final say is the exclusive prerogative of the executive government.
The recommendations of the appropriate constitutional functionaries from the judicial organ of the State has an equally important role.
"Consultation" should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation.
[458F G] (15) There are preponerant and compelling cousideratious why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its posses sion which may indicate that the appointment is otherwise undesirable.
[458G H] (16) The correctness of the opinion of the majority in S.P. Gupta 's case relating to the status and importance of consultation, the primacy of the position of the Chief Justice of India and the views that the fixation of Judge strength is not justiciable should be reconsidered by a larger bench.
[459B] (17) In view of the fact that the bulk of vacancies in the High Courts have been filled up, and in view of the assurance held out by the learned Attorney General that prompt steps are being taken to fill up the remaining vacan cies, further monitoring for the time being is not neces sary.
[459F]
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Civil Appeal Nos. 152, 153, 155,156, 158, 160 and 162 of 1972.
From the Judgment and Order dated 20.11.
1970 of the Andhra Pradesh High Court in W.A. No. 616 of 1969.
103 of 1970, 472 397 of 1970,474 of 1970,473 of 1970,99of 1970 and W.P. No. 4947 of 1968.
G. Venkatesh Rao and A.V. Rangam for the Appellants.
C. Sitaramiah, B. Parthasarthi, A.D.N. Rao and A. Subba Rao the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
These seven appeals by certificate under Article 133(1)(a) of the Constitution of India are from the common Judgment of the Andhra Pradesh High Court dated 20.11.1970 in several appeals and writ petitions.
The appel lants are the tenants and respondents are the landholders or their legal representatives, as the case may be, in respect of the tenanted agricultural lands of the hitherto inam estates of Kukunuru and Veerabhadrapuram villages in the West Godavari District of Andhra Pradesh.
After coming into force of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (A.P. Act 25 of 1948), hereinafter referred to as `the Estates Abolition Act ', the inam estates were abolished and the land stood vested in the Government free of all encumbrances.
The pre existing right, title and interest of erstwhile landholders ceased except to claim ryotwari patta.
The tenants were not liable to be evicted pending the proceedings for issuance of ryotwari patta.
The respondents landholders, hereinafter referred to as `the landholders ', claimed that the lands in question were either under their personal cultivation or they intended to resume those for private cultivation and as such those were their private lands and they were entitled to ryotwari pattas.
The appellants tenants on the contrary claimed that those were not private lands of the landholders as those were neither under their personal cultivation nor they intended to resume those for personal cultivation, but those were in possession of the tenants who were entitled to ryotwari pattas after the abolition of the estates.
The Settlement Officer of Anakappalla, after making inquiry under section 25 of the Estates Abolition Act held in all the cases in these appeals, except one (out of which W.P. No. 695/1968 arose) that the landholders failed to establish that they were personally cultivating the lands or they intended to resume the lands for personal cultivation and as such rejected their claims, except in the aforesaid case.
The landholders ' appeals therefrom to the Estates Abolition Tribunal were 398 allowed relying on.
and applying the tests formulated in Periannan vs Amman Kovil, AIR 1952 Mad. 323 (FB) and holding that in all cases the landholders were entitled to the grant of ryotwari pattas as the lands were private lands within the meaning of section 3(10)(b)(i) of the Andhra Pradesh.
(Andhra Area) Estates Land Act, 1908 (A.P. Act I of 1908), hereinaf ter referred to as `the Estates Land Act ', and that the tenants were not entitled to ryotwari pattas in respect of the same.
The appellants tenants moved writ petitions before the High Court of Andhra Pradesh impugning the deci sion of the Estates Abolition Tribunal.
O. Chinnappa Reddy, J. as he then was, sitting singly, after discussing the case law on the question, by a common Judgment in nine writ petitions, observing that it was common ground before the Subordinate Tribunal as well as before him that the nature of the lands at the inception, whether ryoti or private, was not known and that the burden of establishing that the lands were private lands was on the landholders; and that it was also common ground before him that apart from the fact that there were occasional changes of tenants, and that the lands were sometimes leased under short term leases, there were no other circumstances indicating that the landholders intended to resume cultivation of the lands, held that after the pronouncement of this Court in Chidambaraam Chettiar vs Santhanaramaswamy Odayar; , , the decision of the Full Bench of the Madras High Court in Periannan vs Amman Kovil, (supra) could no longer be considered good law and that the decision in Jagdeesarn Pillai vs Kupparnreal, ILR and in Perish Priest of Karayar vs Thiaga raja Swami Devasthanam, App.
176 178 and 493 of 1946 once more held the field.
It was also observed that since in all the cases before him the only mode of proof attempted by the land holders was the grant of short term leases and change of tenants and rent, it must be held that the lands were not established to be private lands and that no `at tempt was made to prove personal cultivation or any inten tion to resume personal cultivation.
As the Estates Aboli tion Tribunal applied the tests laid down by the Madras Full Bench in Periannan 's case (supra) and since Periannan 's case was no longer good law, the writ petitions had to be allowed and the impugned orders of the Tribunal quashed in eight writ petitions.
In Writ Petition No. 695 of 1968 the orders of the Assistant Settlement Officer was quashed.
The landholders preferred writ appeals therefrom.
Two Writ Petitions, namely, Writ Petition No. 4947 of 1968 and Writ Petition No. 310 of 1968 were also taken up for hearing analogously.
The Division Bench observing that the main question for consideration in the appeals was whether the decision of the Full Bench in Periannan 's 399 case was good law and it turned on the effect of some impor tant precedents and a review of the principles enunciated by them, and after discussing the case law took the view that in the first place the e observations of this Court in Chidambaram 's case were in accord with the rule in Perian nan 's case and secondly, even if some of the dicta in the Judgment of this Court in Chidambaram suggested a contrary principle, the effect of the entire observations did not support the contention that Periannan 's case had been im pliedly overruled by this Court.
The writ appeals were accordingly allowed except Writ Appeal No. 616 of 1969 which was dismissed.
Writ Petition No. 4947 of was allowed and Writ Petition No. 310 of 1968 was dismissed taking the same view.
Hence these appeals by certificate.
Mr. A.V. Rangam, the learned counsel for the appellants, submits that the learned Single Judge having found as fact that the landholders had failed to establish that the lands were their private lands as those were neither under their personal cultivation nor they were intended to be resumed for personal cultivation and applying the rule in Chidamba ram 's case the learned Single Judge having held that the lands were not private lands, the Division Bench erred in holding to the contrary; and that the learned Single Judge correctly held that Periannan 's case was no longer good law as in Chidambaram Chettiar vs Santhanaramaswamy Odayar, (supra), it was held that the definition of private land in section 3(10) of the Estates Land Act of 1908 read as a whole indicated clearly that the ordinary test for private land was the test of retention by the landholder for his own personal use and cultivation by him or under his personal supervision, though they might be let on short leases, it was not the intention or the scheme of the Act to treat as private those lands with reference to which the only pecul iarity was the fact that the landholder owned both the varams in the land and had been letting them out on short leases, the Division Bench erred in holding that Periannan 's test were still applicable.
Mr. C. Sitaramiah, the learned counsel for the respondents.
submits that the correct tests for determining what was private land had been laid down in Periannan 's case, which were not different from those of Chidambaram 's case and the Division Bench correctly applied those tests to find that the lands were private lands of the landholders; and that in Chidambaram 's case the appellant had not adduced sufficient evidence to rebut the presumption under section 185 of the Estates Land Act that the lands con cerned in the inam village were not ryoti lands as defined in section 3(16) as the Tanjore Palace Estate was held to be an `estate ' within the meaning of section 3(2)(d) of the Estates Land Act and the widows of the Raja enjoyed both the varams, but were not personally cultivating 400 them.
In the instant case, according to counsel, the rights of the landholders were not the same as those of the widows of the Raja of Tanjore after the relinquishment of the landed properties by the Government which amounted to a re grant.
The Division Bench pointed out several misconceptions in some precedents for which they could not be said to have laid down the correct law.
Counsel further submits that in Chidambaram 's case, the grant of Orathur Padugai village was of the whole village and a named one and, therefore, it was an Estate within the meaning of section 3(2)(d) of Estates Land Act and the courts having concurrently found that the lands in dispute were ryoti lands and not private lands, the landholders claiming that the lands were private lands had to show that they converted the ryoti lands into private lands which they could prove only by showing their personal cultivation and they failed to prove it, and that case was therefore distinguishable on facts and could not be held to have overruled Periannan 's tests.
The question to be decided in these appeals, therefore, is whether in view of this Court 's decision in Chidamba rarn 's case the decision in Periannan 's case is still good law, and whether on application of the correct legal tests the lands in dispute are private lands of the landholders entitling them to ryotwari pattas in respect thereof or those are ryoti lands in possession of the appellants as tenants of the landholders and, as such, they are entitled to ryotwari pattas thereof.
In other words, whether the appellants or the respondents are entitled to ryotwari pattas under the Abolition of Estates Act.
To appreciate the rival submissions, reference to the relevant provisions of the Estates Land Act and the Estates Abolition Act is necessary, and to understand the relevant provisions of the two Acts a little knowledge of development of the land system and legislation in the area will be helpful.
The Estates Land Act amended and declared the law relat ing to the holding on land in estated in the Andhra Area of the State of Andhra Pradesh which includes the West Godavari District to which the two inam villages concerned in this appeal belong.
It appears the scheme of the Estates Land Act divides cultivable lands in the two categories, namely, (1) private lands and (2) ryoti lands.
The Act relates to the holding of land in estates.
As defined in section 3(2) `estate ' means: "(a) any permanently settled estate or temporarily settled zamindari; 401 (b) any portion of such permanently settled estate or tempo rarily settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyam or jagir; (d) (i) any inam village, or (ii) any hamlet or khandriga in an inam village, of which the grant as an inam has been made, confirmed or recognized by the Government, notwithstanding that subse quent to the grant, such village, hamlet or khandriga has been partitioned among the grantees, or the successors intitle of the grantee or grantees.
[Explanation: (1) Where a grant as an inam is expressed to be of a named village, [hamlet of khandriga in an inam village] the area which forms the subject matter of the grant shall be deemed to be an estate notwithstanding that: it did not include certain lands in the village [hamlet or khandriga] of that name which have already been granted on service or other tenure or been reserved for communal pur poses].
[Explanation: (1 A) An inam village, hamlet or kandriga in an inam village granted in inam, shall be deemed to be an estate, even though it was confirmed or recognized on dif ferent dates, or by different title deeds or in favour of different persons.
Explanation: (1 B) [If any hamlet or khandriga granted as inam] was at any time designated as an inam village of as a part thereof in the revenue accounts, it shall for purposes of item (ii) or sub clause (d) be treated as being a hamlet or khandriga of an inam village, notwithstanding that subse quently it [has come to be designated] in the Revenue ac counts as a ryotwari or zamindari village or part thereof].
Explanation (2) Where an inam village is resumed by the State Government, it shall cease to be an estate; but, if any village so resumed is subsequently regranted by the Government as an inam, it shall from the date of such re grant, be regarded as an estate.
402 Explanation (3): Where a portion of an inam village is resumed by the Government such portion shall cease to be part of the estate, but the rest of the village shall be deemed to be an inam village for the purposes of this sub clause.
If the portion so resumed or any part thereof is subsequently regranted by the Government as an inam, such portion or part shall from the date of such re grant.
be regarded as forming part of the inam village for the purpose of this sub clause; (e) any portion consisting of one or more villages of any of the estates specified above in clauses (a), (b) and (c) which is held on a permanent under tenure .
" It appears that the original definition had undergone several amendments.
Clause (d) and Explanation (I A) were substituted by section 2(i) of Act XXXV of 1956.
The Explanation (1) was inserted by section 2(1) of Act 1I of 1945.
Explanation (1) and (1 B) were amended by section 2(ii) of Act XXXV of 1956 and Explanation (2) and (3) are the renumbered old Explana tions (1) and (2) inserted by section 2(1) of Act H of 1945.
The respondents claim to have been `landholders '.
As defined in section 3(5): `Landholder ' means a person owning an estate or part there of and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor in title or of any order of a competent Court or of any provision of law.
Where there is a dispute between two or more persons as to which of them is the landholder for all or any of the purposes of this Act or between two or more joint landholders as to which of them is entitled to proceed and be dealt with as such landholder, the person who shall be deemed to be the landholder for such purposes shall be the person whom the Collector subject to any decree or order of a competent Civil Court may recognize or nominate as such landholder in accordance with rules to be flamed by the State Government in this behalf.
" Both "Private land" and "ryoti land" have been defined in the Act.
As 403 defined in section 3(10) private land means: "(a) in the case of an estate within the meaning of sub clauses (a), (b), (c) or (e) of clause (2) means the domain or home farm land of the landholder by whatever designation known such as, kambattam, khas, sir, or pannai, and includes all land which is proved to have been cultivated as private land by the landholder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years immediately before the commencement of this Act; and (b) in the case of an estate within the meaning of subclause (d) of clause (2), means (i) the domain or home farm land of the landholders, by whatever designation known, such as kambattam, khas, sir or pannai; or (ii) land which is proved to have been cultivated as private land by the landholder himself, by his own servants or by hired stock, for a continuous period of twelve years immedi ately before the first day of July 1908, provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land; or (iii) land which is proved to have been cultivated by the landholder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years immediately before the first day of November, 1933, provided that the landholder has retained the kudiva ram ever since and has not converted the land into ryoti land; or (iv) land the entire kudivaram in which was acquired by the landholder before the first day of November, 1933 for valu able consideration from a person owning the kudivaram but not the melvaram, provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land, and provided further that, where the kudivaram was acquired at a sale for arrears of rent, the land shall not be deemed to be private land unless it is proved to have been cultivated by the landholder him 404 self, by his own servants or by hired labour, with his own or hired stock.
for a continuous period of twelve years since the acquisition of the land and before the commence ment of the Andhra Pradesh (Andhra Area) Estates land (Third Amendment) Act, 1936.
" As defined in section 3(16): `Ryoti land ' means cultivable land in an estate other than private land but does not include (a) beds and bunds of tanks and of supply, drainage surplus of irrigation channels; (b) threshing floor, catfie stands, village sites, and other lands situated in any estate which are set apart for the common use of the villagers; (c) land granted on service tenure either free of rent or on favourable rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists.
Village is defined in section 3(19): `Village ' means any local area situated in or constituting an estate which is designated as a village in the revenue accounts and for which the revenue accounts are separately maintained by one or more karnams or which is now recognized by the State Government or may hereafter be by the State Government for the purposes of this Act to be a village, and includes any hamlet or hamlets which may be attached there to." The Estates Abolition Act provided for `the repeal of the permanent settlement, the acquisition of the landholders in permanent estate and in certain other estates in the State of Andhra Pradesh and the introduction of the ryotwari settlement in such estates.
It extended to the whole of the State of Andhra Pradesh and applied to all estates as de fined in section 3 clause (2) of the Estates Land Act.
This Act, in section 2(3) defined `estate ' to mean a zamindari or an under tenure or an inam estate.
As defined in section 2(7) `inam estate ' means an estate within the meaning of section 3, clause (2)(d) of the Estates Land Act.
405 The statement of objects and reasons of the Estates Abolition Act speaks of acute discontent among estate ryots and good deal of agitation under zamindari administration which was considered to have outlived its usefulness and needed abolition.
It also mentioned about the election manifesto issued by the Working Committee of the Congress Party in December 1945 urging reform of the land system and that such reform involved the removal of all intermediaries between the peasant and the State and that the rights of such intermediaries should be abolished on payment of equi table compensation.
In February 1947 the Madras Legislative Council passed a resolution accepting the general principle of the abolition of the zamindari system and recommending to the Government that legislation for the purpose be undertak en and brought forward at an early date.
The Government accordingly proposed to abolish the zamindari system by acquiring all estates governed by the Estates Land Act including whole inam villages and converting them into ryotwari paying equitable compensation to the several per sons having an interest in the estates.
The Estates Abolition Act has also undergone a number of amendments.
The Amendment Act 1 of 1950 inserted section 54(a)& section 54(b) dealing with compensation.
The Amendment Act XVII of 1951 clarified certain positions in regard to Inam vil lages.
Section 17(1) of the Estates Abolition Act provided for the grant of ryotwari patta to a person holding any land granted on service tenure failing under section 3(16)(c) of the Estates Land Act irrespective of whether such land consisted of only a portion of a village or of one or more villages.
The reference to one or more villages in the section had given rise to the misapprehension that it applied also to an entire village granted on service tenure.
But the intention was that the provisions of the section should not apply to such a village and clause 3 of the Act gave effect to it and clause 4 was consequential of clause 3.
The provisions of the Estates Abolition Act were brought into force in certain inam villages on the assumption that they were under tenure estates.
But it had been subsequently found that the assump tion was not correct.
It was therefore necessary to withdraw the operation of the Act from those villages and the Amend ment Act provided for such withdrawal.
The Amendment Act XXI of 1956 dealt with annual payments to any religious educa tional or charitable institutions.
The Amendment Act XVII of 1957 made provisions for the abolition and conversion in the ryotwari tenure of certain categories of inams under the Estates Abolition Act.
Under section 3(2)(d) of the Estates Land Act, as originally enacted,.whole inam villages in respect of which the original grant conferred only the melvaram right on a person not owning the kudivaram thereof alone 406 became `estates '.
By virtue of Third Amendment of the Es tates Land Act whole inam villages m which both melvaram and kudivaram rights vested in the inamdars also became estates.
The provisions of the Madras Estates Land (Reduction of Rent) Act, 1947 (Madras Act XXX of 1947) were applicable to both these categories of whole inam villages.
But the provi sions of the Estates Abolition Act were not applicable to the whole inam villages which became estates under the Madras Estates, Land (Third Amendment) Act, 1936, i.e. those in which the inamdars possessed both the melvaram and kudi varam rights.
Under section 2 of the Estates Land Amendment Act, 1946, section 3(2)(d) of the Estates Land Act was further amended so as to include within the definition of `estate ' hamlets and khandrigas of inam villages which were previously held to be not estates.
Provision was also made so as to bring within its purview only such of the inam hamlets and inam khandrigas of inam villages wherein the melvaram rights alone vest in the inamdars.
Thus, the only categories of inam estates which now remained outside the purview of the Estates Abolition Act were: (a) the whole inam village which became estate by virtue of the Madras Act XVIII of 1936 and (b) inam hamlets and khandrigas of inam villages which became estates by virtue of the Estates Land (Andhra Amend ment) Act, 1956 but in respect of which both melvaram and kudivaram rights vested in the inamdars.
The Amendment Act XX of 1960 dealt with all post 1936 inam villages which were also brought within the purview of the Estates Abolition Act by the Amendment Act XVIII of 1957.
The Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (Act XXXVII of 1956) provided for conversion of all inam lands other than estates into ryotwari tenure.
The Act extended to the whole of the Andhra State, but applied only to lands described in clause (c) of section 2.
Section 2(c) defined "inam land" to mean any land in respect of which the grant in inam has been made, confirmed or recognised by the Government, (Act 3 of 1964 inserted thereafter the words) "land includes any land in the merged territory of Banagana palle in respect of which the grant in inam has been made, confirmed or recognised by any former Ruler of the territo ry", but does not include an inam constituting an estate under the Estates Land Act.
Section 2(d) defines an "Inam Village" to mean a village designated as such in the revenue accounts of the Government, (and includes a village so designated immediately before it was notified and taken over by the Government under the Estates Abolition Act.
Thus to find out whether a `village was designated as inam village or not, prima facie the revenue accounts of the Government which 407 were there at the time of the Inam Abolition Act came into force had to be looked into.
If it was so shown no further proof was necessary.
Only when the entries in the revenue accounts were ambiguous, and it was not possible to come to a definite conclusion, it might be necessary to consider other relevant evidence which was admissible under the evidence Act.
Section 2 A of this Act said: "Notwithstanding anything contained in this Act all communal lands and poramookes, grazing lands, waste lands.
forest lands, mines and quer ries, tanks, tank beds and irrigation works, streams and rivers, fisheries and ferries in the inam lands shall stand transferred to the Government and vest in them free of all encumbrances.
" Section 3 of the Act prescribed the procedure for deter mination of inam lands and provided for giving opportunity to interested persons.
As we have already noted the High Court found that the basis of the decision of the Tribunal in all the cases was that .sometimes the leases were for short terms with occa sional change of tenants and rents payable by them and that the nature of the lands, whether ryoti or private, was not known and that it was the burden of the landholder to prove that the lands were private lands and that there was no other circumstances to show that the landholders intended to resume cultivation of the same.
It was conceded before the Single Bench by the learned Advocate for the petitioners that if the tests formulated by the Full Bench in Perian nan 's case applied to the facts of these cases the land must be held to be private land and the landholders must be considered to have established their claim to grant of ryotwari pattas.
The Division Bench did not change this position in view of the provisions of Section 185 of the Estates Land Act as amended from time to time.
The original section said: "185.
When in any suit or proceeding it becomes necessary to determine whether any land is landholder 's private land, regard shall be had to local custom and to the question whether the land was before the first day of July 1898, specifically let as private land and to any other evidence that may be produced, but the land shall be presumed not to be private land untill the contrary is shown: Provided that all land which is proved to have been cultivated as private land by the landholder himself, by his own servants 408 or by hired labour with his own or hired stock for twelve years immediately before the commencement of this Act shall be deemed to be the landholder 's private land.
" Section 185 was amended in 1934, 1936 and 1955 whereafter it as follows: "185.
When in any suit or proceeding it becomes necessary to determine whether any land is the landholder 's private land, regard shall be had (1) to local custom, (2) in the case of an estate within the meaning of subclause (a) (b), (c) or (c) of clause (2) of section 3 to the ques tion whether the land was before the first day of July 1898, specifically let as private land and (3) to any other evidence that may be produced: Provided that the land shall be presumed not to be private land until the contrary is proved: Provided .further that in the case of an estate within the meaning of sub clause (d) of clause (2) of sec tion 3 (i) any expression in a lease, patta or the like, executed or issued on or after the first day of July 1918, to the effect or implying that a tenant has no right of occupancy or that his right of occupancy is limited or restricted in any manner, shall not be admissible in evidence for the purpose of proving that the land concerned was private land at the commencement of the tenancy; and (ii) any such expression in a lease, patta or the like, executed or issued before the first day of July 1918, shall not by itself be sufficient for the purpose of proving that the land concerned was private land at the commencement of the tenancy.
" When the Estates Abolition Act was passed, the legisla ture envisaged the difficulties that could arise in respect of the estates in which the landholder would be entitled to ryotwari patta.
Section 13 409 provided as to in respect of what lands in inam estates the landholder would be entitled to ryotwari patta and said: 13.
Lands in inam estate in which landholder is entitled to ryotwari patta: In the case of an inam estate, the landholder shall, with effect on and from the notified date, be entitled to ryotwari patta in respect of (a) all lands (including lanka lands) which immediately before the notified date, (i) belonged to him as private land within the meaning of Section 3, clause (10)(b) of the Estates I.and Act, or (ii) stood recorded as private land in a record prepared under the provisions of Chapter XI or Chapter XII of the said Act, not having been subsequently converted into ryoti land; and (b)(i) all lands which were properly included, or which ought to have been properly included, in the holding of a ryot and which have been acquired by the landholder, by inheritance or succession under a will provided that the landholder has cultivated such lands himself, by his own servants or by hired labour with his own or hired stock, in the ordinary course of husbandry, from the date of such acquisition or the 1st day of July, 1945 whichever is later and has been in direct and continuous possession of such lands from such later date; (ii) all lands which were properly included, or which ought to have been properly included in the holding of the ryot and which have been acquired by the landholder by purchase, exchange or gift, including purchase at a sale or arrears of rent; Provided that the landholder has cultivated such lands himself, by his own servants or by hired labour, with his own or hired stock, in the ordinary course of husbandry from the 1st day of July, 1945 and has been in direct and continuous possession of such lands from that date; (iii) all lands [not being (i) lanka lands], (ii) lands of the description specified in Section 3, clause (16), sub clauses (a), (b) and (c) of the Estates Land Act, or (iii) forest lands which have been abandoned or relinquished by a ryot, or 410 which have never been in the occupation of a ryot, provided that the landholder has cultivated such lands himself, or by his own servants or hired labour, with his own or hired stock, in the ordinary course of husbandry, from the 1st day of July, 1945 and has been in direct and continuous posses sion of such lands from that date.
Explanation: `Cultivate ' in this clause includes the plant ing and rearing of topes, gardens and orchards, but does not include the rearing of topes of spontaneous growth.
" Section 15 dealt with the determination of lands in which the landholder would be entitled to ryotwari patta under the foregoing provisions of the Act and said: "(1) The Settlement Officer shall examine the nature and history of all lands in respect of which the landholder claims a ryotwari patta under Sections 12, 13 or 14, as the case may be, and decide in respect of which lands the claim should be allowed.
XX XX XX XX XX XX XX XX XX XX An interpretation of the words "Private land" and "ryoti land" has to be made in consonance with the legislative purpose, provisions and scheme of the enactment.
Interpre tare et concordare leges legibus, est optimus interpretandi modus.
To interpret and in such a way as to harmonize laws with laws is the best mode of interpretation.
We may now examine the question whether the tests formu lated in Periannan 's case (supra) can still be applied in face of the decision in Chidambaram 's case (supra).
In other words whether Periannan 's decision is still a good law.
In Periannan the Full Bench of Madras High Court dealt with a batch of second appeals and a batch of civil revision peti tions.
The suits out which the second appeals arose.
related to the village of Manamelpatti, a Dharmasanam village in the Ramnad District and those were instituted by the trustees of Airabhadeswarar Soundaranayagi Amman Temple for ejectment of the defendants from the lands in their respective possession and for recovery of rent for faslis 1349 and 1350 and for future profits.
The village comprised 80 pangus out of which the plaint temple in this batch owned 231/2 pangus purchased from the original owners and one pangu taken on othi from the owner.
The plaintiffs in the batch of suits out of which the civil 411 revision petitions arose were the managers of the Devastha nam of Nagara Vairavapatti Valaroleeswaraswami Nagara Vaira vaswami Devasthanam.
That temple owned 54 and 5/8th pangus or shares in the village and the suits were instituted for recovery of the balance of amounts due as `irubhogam ' for faslis 1349 and 1350.
In both the batches of suits the plaintiffs claimed that they were the owners of meIvaram and kudivaram interests in the lands which were being enjoyed as "pannai" lands or private lands; that they were leasing the lands from time to time changing tenants and collecting "swamibhogam" in recognition of their full proprietary rights in the lands.
They claimed that the tenants had no occupancy rights in the lands; and in the second appeals batch a relief for ejectment of the tenants was also claimed.
The defence of defendants tenants in both the batches was common.
They claimed that the temples owned only the melvaram interest and that they, the tenants, were the owners of the kudivaram which they had been enjoying heredi tarily paying half varam in respect of the nanjas and a fixed money rent for the punja or dry lands according to the "tharam" (classification) of lands.
They denied that they ever paid "swami bhogam" to the temple.
In all the suits there was the common plea that the village was an "estate" under Section 3(2)(d) of the Madras Estates Land Act, as amended by the Madras Estates Land (Amendment) Act, 1936 (Act XVIII of 1936); that they had therefore acquired occu pancy rights under the Act; and that the lands were ryoti and that, therefore, the civil court had no jurisdiction to try those suits.
The plaintiffs also raised an alternative contention that on the footing that the village was an "estate" the suit lands were private lands or "pannai" lands of the temples and, therefore, the defendants acquired no occupancy rights in the lands under the statute and that the civil court alone had the jurisdiction to entertain and try the suits.
The High Court found that the main questions that had to be considered by the courts below were whether the village was or was not an estate under the Madras Estates Land Act and, if so, whether the lands were private lands as claimed by the plaintiffs or ryoti lands as claimed by the tenants.
The further question that even apart from the Estates Land Act whether the defendants had acquired occupancy rights by prescription was also raised and considered.
The jurisdic tion of the civil court to entertain the suits depended upon the decision of the question whether the village was or was not an estate.
On the main questions the concurrent findings of the Courts below were that the village was an "estate" under Section 3(2)(d) of the Madras Estates Land Act as amended in 1936, that the plaint temple owned the melvaram and kudivaram interests in the lands; that the lands were 412 private lands as defined by the Madras Estates Land Act; that the defendants had acquired no occupancy rights in the lands either under the Act or by prescription and that the suits were properly laid in the civil court which had un doubted jurisdiction to try the suits.
The Subordinate Judge, in appeals, agreed with the finding of the trial court but refused the plaintiff 's relief for ejectment on the ground that the tenancy was not lawfully terminated.
The lands in both the sets of cases were situated in the same village of Manamelpatti.
Before the High Court the findings of the courts below that the temple owned the melvaram and kudivaram interests in the lands and the defendants had not acquired permanent rights of occupancy in the lands apart from the Act had not been disputed by the defendants.
The dispute, therefore, was confined to two questions, namely, first, whether the vil lage was an "estate" under the Madras Estates Land Act and, secondly, whether the concurrent finding of the courts below that the lands were private lands of the temple was correct or not.
While deciding the second question and dismissing the second appeals and the civil revision petitions, the learned Judges discussed the relevant case law and therefrom Satyanarayana Rao, J with whom Vaswanath Sastri, J con curred, at paragraph 49 page 346 of the report held that the following propositions were established: "1.
If the land is known to be ryoti at its inception the only mode by which it could be converted into private land is by proof of continuous cultivation for a period of 12 years prior to the commencement of the Act.
Even if the nature of the land is not known, continuous cultivation for the required period of 12 years before the commencement of the Act would conclusively establish that the land is private land.
If there is no proof of cultivation for a continuous period of 12 years before the commencement of the Act, the land may be proved to be private land by other methods; provided the land was not shown to be once ryoti.
Cultivation of the lands or leasing of the lands under short term leases may be one mode of proof.
An intention to cultivate or resume for cultivation is also a test to decide that the land is private land and such 413 intention may be established by any other means, not neces sarily by cultivation and by cultivation alone.
The essence of private land is continuous course of conduct on the part of the land holder asserting and acting on the footing that he is the absolute owner thereof and recognition and acceptance by the tenants that the landhold er has absolute right in the land.
Mere proof that the land holder is the owner of both the warams is not sufficient to prove that the land is private land.
" Considered in light of the definition of "private land", sections 13 and 15 of the Estates Abolition Act and the basic concept of "domain or home farm land", we are of the view that the proposition 4, 5 and 6 above have to be doubt ed.
Viswanatha Sastri, J. who concurred summarised his conclusions as under: "I may now summarise my conclusion on the legal aspects of the case.
Where land proved or admitted to be once ryoti land is claimed to have been converted into private land, the claim is untenable unless the land holder proves direct cultivation for a period of 12 years before 1st July 1908.
No other mode of conversion is permissible.
Where you have to find out whether a land is private or ryoti its original character not being known, proof of direct cultivation of the land by the land holder for 12 years before 1st July 1908, would, without other evidence, conclusively establish its character as private land, but this is not the only mode of proof permitted to land holder.
Other evidence may be adduced and looked into and might consist, among other matters, of direct cultivation of the land at some period anterior to 12 years preceding 1st July 1908 but this is not indispensable.
Direct cultivation may be valuable and weighty evidence and may be inferred from accounts and other records usually kept by large land holders.
If, owing to lapse of time or other reasons, evi dence of direct cultivation is not forthcoming its absence is not fatal to the claim that the land is private.
section 185 of the Act 414 does not shut out, but on the other hand allows all evidence that would be relevant and admissible under the law of evidence, to prove that fact in issue, namely, whether the land is private or ryoti.
Local usage or custom and the letting of the land as private land in leases before 1898 are specifically mentioned in Ss. 185(1) and (2) as being relevant evidence but other evidence is also expressly made admissible under section 185(3).
The classification of lands as private lands at the time of the permanent settlement or in the early records of zamindaries, the terms of the grant of an undertenure, the assertion and enjoyment by the land holder of the right to both the warams, the intention to retain with himself the kudiwaram right and the consequent right to resume direct cultivation if he chooses, leases of the lands as private lands or with terms and conditions inconsistent with any right of occupancy in the leases, admissions by tenants that the land holder is the owner of both warams and that they have no occupancy rights, changes in the personnel of the tenants, variations in the rates of rent payable by the tenants these and kindred matters would be relevant and admissible in evidence to prove that the lands are private lands.
The probative value of such evidence depends on the facts and circumstance of each case.
The burden of proof that a particular land in an estate is private land rests on the land holder, the statu tory presumption being the other way.
This burden is not discharged merely by proving that both the warams were granted to or enjoyed by the land holder once upon a time.
There must be evidence of the treatment of the lands as private lands by the land holder, either by direct cultiva tion or otherwise in the manner above stated.
" Considering the statutory definition, in our opinion, the third paragraph and last part of last paragraph above have to be doubted.
Raghava Rao, J. who dissented summarised his conclusions separately.
We are not oblivious the fact that on the basis of the above propositions cases have been decided for a long time.
But their tenability having been questioned in the instant case we proceed to examine them.
The above propositions no doubt refer to different 415 aspects including the evidentiary aspect of the question of determination of `private lands ' and `ryoti lands ' but it may be difficult to hold that each or all of them by them selves laid down any rule to be invariably followed irre spective of the history, location and nature of the estates, their cultivation and the customs governing them.
There is also no sufficient exposition of the central concept of `domain ' and `home farm ' lands in the above propositions.
These words were not defined ,in the Estates Land Act In Zamindar of Chellapalli vs Rajalapati Somayya, , Wallis C.J. adopted the dictionary meaning, namely, "the land about the mansion house of a Lord and in his immediate occupancy".
Seshagiri Aiyar, J. in the same case quoted from the Encyclopaedia Brittanica, Vol.
III (3): `Domain ' as synonymous to `Domesne ' and is explained as follows: "Domesne (Domeine, Demain, Domain etc.) that portion of the land of a manor not granted out in the freehold tenancy, but (a) retained by the lord of the manor for his own use and occupation, or (b) let out as tenemental land to his retain ers or `villani. ' The domesne land originally held at the will of the landlord, in course of time came to acquire fixity of tenure and developed into the modern copyhold.
It is from domesne as used in sense (a) that the modern re stricted use of the word comes, i.e., `land immediately surrounding the mansion or dwelling house, the park or chase '." In Jagadeesam Pillai vs Kupoarnmal (supra) which related to lands in an inam village which was part of the Tanjore palace, Wadsworth, Offg.
C.J. accepeted the interpretation put upon the word "Domain" by Wailis, C.J. and Sesnagiri Aiyar, J. In Chellapalli case (supra) as meaning "land immediately surrounding the mansion or dwelling house, the park or chase" and that connoted land appurtenant to the mansion of the lord of the manor kept by the landlord for his personal use and cultivated under his personal supervi sion as distinct from lands let to tenants to be farmed without any control from the lord of the manor other than such control as in incident to the lease.
The learned Judge further observed: "It seems to us that the sub clause (b)(1) of the definition is intended to cover those lands which come obviously within what would ordinarily be recognised as the domain or home farm, that is to say, lands appurtenant to the landholder 's residence and kept for his enjoyment and use.
" In Parish Priest of Karayar Parish vs Thiagarajaswami Devas 416 thanam, (supra) Subba Rao and Chandra Reddy, JJ accepted the test laid down in Jagadeesam (supra) and the legal position was summarised as follows: "The legal position having regard to the provisions of the Act and the decisions dealing with them in so far as it is relevant for the purposes of this case may briefly be stated thus.
Private land as defined under the Madras Land Estates Act comprises two categories, private lands, technically so called and lands deemed to be private lands.
In regard to private lands strictly so called, it must be a domain or home farm land as understood in law.
The mere fact that particular lands are described in popular province as pan nai, kambattam, sir, khas, is not decisive of the question unless the lands so called partake of the characteristics of domain or home farm lands.
The test to ascertain whether a land is domain or home farm is that accepted by the Judicial Committee in `Mallikarjuna Prasad vs Somayya ', i.e. land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season.
Whenever a question therefore arises whether a land is private land technically so called, as defined in sub clause (1) of clause (b) to section 3(10) the presumption is that it is not a private land.
The recitals in the leases, pattas etc.
after 1918 must be excluded and the recitals in similar documents prior to 1918 in them selves are not sufficient evidence.
There must be in addi tion direct evidence that these lands were either domain or home farm lands in the sense that they were in their origin lands directly cultivated by the landlord or reserved by him for his direct cultivation.
We are not concerned in this case with the question whether ryoti lands could be convert ed into private lands.
" The trend not to confine the concept of private lands only to domain or home farm lands but to include in it lands situate outside in which land holder had granted leases or made arrangements for cultivation with a view to resume them for personal cultivation did not find favour in the above three decisions.
In Chidambaram Chettiar (supra) involved lands in Orathur 417 Padugai in Tanjore Palace Estate.
The Raja of Tanjore having died without leaving any male issue the East India Company took possession of all his properties including his private property.
Later, on representation of the senior widow of the late Raja, the Government of India in 1962 "sanctioned the relinquishment of the whole of the landed property of the Tanjore Raja in favour of the heirs of the late Raja.
" The Tanjore Palace Estate thus came into existence.
In 1948 the appellant purchased the suit lands situate in Orathur Padugai within Tanjore Palace Estate and instituted suits for possession from the various defendants.
The Trial Court having dismissed the suits on the ground that the lands were situated in an estate as defined in section 3(2)(d) of the Madras Estates Land Act and they were ryoti lands as defined in section 3(16) in which the defendants have acquired occupancy rights.
The Madras High Court having affirmed that decree in appeal, the appellant came to this Court contending that the lands did not form an `estate ' under section 3(2)(d) because the restoration did not amount to a fresh grant but only resto ration of status quo ante; that Orathur Padugai was not a whole village to be an estate and that the widows of the late Raja enjoyed both the varams and the lands purchased by the appellant were private lands under section 3(10)(b) so that the defendants did not have any occupancy rights therein.
Holding that the relinquishment by the Government in 1962 amounted to a fresh grant and that since 1830 onwards Ora thur Padugai was a whole village and therefore an estate, their Lordships enunciated the tests as to private land thus: "Under section 3(10) of the Act, private land comprises of two categories, private lands technically so called, and lands deemed to be private lands.
In regard to private lands technically so called, it must be the domain or home farm land of the landholder as understood in law.
The mere fact that particular lands are described in popular parlance as pannai, kambattam, sir, khas, is not decisive of the ques tion unless the lands so called partake of the characteris tics of domain or home fair lands.
In our opinion the cor rect test to ascertain whether a land is domain or home farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu vs Somayya, ILR , that is whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a sea son.
The Legislature did not use the words `domain or home farm land without attaching to them ,a meaning; and it is reasonable to suppose that the Legislature would 418 attach to these words the meaning which would be given to them in ordinary English.
It seems to us that the sub clause (b)(i) of the definition is intended to cover those lands which come obviously within what would ordinarily be recog nised as the domain or home farm, that is to say, lands appurtenant to the landholder 's residence and kept for his enjoyment and use.
The home farm is land which the landlord cultivates himself, as distinct from land which he lets out to tenants to be farmed.
The first clause is, therefore meant to include and signify those lands which are in the ordinary sense of the word home farm lands.
The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as homefarm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period.
It seems to us that the definition reads as a whole indicates clearly that the ordinary test for `private land ' is the test of retention by the landholder for his personal use and cultivation by him or under his personal supervi sion.
No doubt, such lands may be let on short leases for the convenience of the landholder without losing their distinctive character; but it is not the intention or the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the warams in the lands and has been letting them out on short term leases.
There must, in our opinion be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard these lands as retained for the personal use of the landholder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Act cannot acquire occupancy rights.
" The concept of home farm does not appear to be much different from that of domain.
According to Black 's Law Dictionary, a farm means body of land under one ownership devoted to agriculture, either to raising crops or pasture or both.
The word farm means a considerable tract of land or number of small tracts devoted wholly or partially to agri cultural purposesor pasturage of cattle but may also include woodland.
The term does not necessarily include only the land 419 under cultivation and within a fence.
It may include all the land which forms part of the tract and may also include several connected parcels under one control.
According to Collins English Dictionary, farm means a tract of land usually with house and buildings cultivated as unit or used to rear livestock.
According to Webster 's Comprehensive Dictionary, International Edition, farm means a tract of land forming a single property and devoted to agricultural stock raising dairing and some allied activity.
We are therefore of the view that home farm necessarily implies a farm with the home of the landholder.
Pollock & Maitland in The History of English Law, 2nd Edn.
Vol. 1, at pp 362 363 describing the manorial arrange ment in England wrote: "Postponing until a late time any debate as to whether the term manor bore a technical meaning, we observe that this term is constantly used to describe a proprietary unit of common occurrence: the well to do landholder holds a manor or many manors.
Now speaking very generally we may say that a man who holds a manor has in the first place a house or homestead which is occupied by himself, his bailiffs or servants.
Along with this he holds cultivable land, which is in the fullest sense (so far as feudal theory permits) his own; it is his demesne land.
Then also, as part of the same complex of rights, he holds land which is holden of him by tenants, some of whom, it may be, are freeholders, holding in socage or by military service, while the remainder of them, usually the large majority of them, hold in villein age, by a merely customary tenure.
In the terms used to describe these various lands we notice a certain instructive ambiguity.
The land that the lord himself occupies and of which he takes the fruits he indubitably holds `in demesne '; the land holden of him by his freehold tenants he indubita bly does not hold `in demesne; his freehold tenants hold it in demesne, unless indeed, as may well be the case, they have yet other freeholders; below them.
But as to the lands holden of him by villein tenure, the use of words seems to fluctuate; at one moment he is said to hold and be seized of them in demesne, at the next they are sharply distinguished from his demesne lands, that term being reserved for those portions of the soil in which no tenant free or villein has any rights.
In short, `language reflects the dual nature of tenure in villeinage; it is tenure 420 and yet it is not tenure.
The king 's courts, giving no protection to the tenant, say that the lord is seized in demesne; but the manorial custom must distinguish between the lands holden in villeinage and those lands which are occupied by the lord and which in a narrower sense of the word are his demesne.
Describing the field system they wrote: " We have usually therefore in the manor ,lands of three kinds, (1) the demesne strictly so called, (2) the land of the lord 's freehold tenants, (3) the villenagium, the land holden of the lord by villein or customary tenure.
Now in the common case all these lands are bound together into a single whole by two economic bonds.
In the first place, the demesne lands are cultivated wholly or in part by the labour of the tenants of the other lands, labour which they are bound to supply by reason of their tenure.
A little labour in the way of ploughing and reaping is not out of the free hold tenants; much labour of the many various kinds is obtained from the tenants in villeinage, so much in many cases that the lord has but small, if any, need to hire labourers.
Then in the second place, these various tenements lie intermingled; neither the lord 's demesne nor the ten ant 's tenement can be surrounded by one ring fence.
The lord has his house and homestead; each tenant has his house with more or less curtilage surrounding it; but the arable por tions of the demesne and of the various other tenements lie mixed up together in the great open fields.
" In paragraph 758 of Halsbury 's Laws of England, 4th Edn., Vol. 9, on the destruction of customs it is said: "As manorial customs attached to the tenure as distinguished from the mere locality of the lands, it followed that upon the destruction of the tenure by enfranchisement of the lands at common law the customs were also destroyed.
A statutory enfranchisement must have effect, however, in accordance with the terms of the statute, and where the statute preserves rights notwithstanding the enfranchisement and the extent of the rights so preserved depended upon custom, the custom remains relevant to define the rights preserved by the statute.
" 421 The basic concept of domain or home farm land and the concept of cultivation as private land by the landholders used in the definition had, therefore, to be borne in mind in determining private land.
The observation of the Division Bench in the impugned Judgment that it is not possible to regard the pronouncement in Zamindar of Chellapalli vs Somayya, (supra) as an authority for the proposition that domain within the meaning of section 3 (10) of the Estates Land Act must be held to mean land around the mansion home of lord and appurtenant thereto, has therefore to be rejected.
The decision of the High Court of Madras in Chellapalli case was confirmed by the Privy Council in Yerlagadda Mallikarju na Prasad Nayudu vs Somayya, (supra).
The learned Single Judge in the instant case also relied on the observations in Chellapalli 's case (supra).
The learned Single Judge rightly observed that the test laid down by Wadsworth, Offg.
C.J. were approved by the Supreme Court in Chidambaram 's case in identical language and that the legislature did not use the word domain or home farm land without attaching to them a meaning and it was reasonable to suppose that they would attach to those words the meaning which would be given to them in ordinary English, namely, to connote land appurte nant to the mansion of the lord of the manor kept by the lord for his personal use and cultivated under his personal supervision is distinct from land let to tenant to be formed without any control from the lord of the manor other than such control as incident to the lease.
We respectfully agree.
To this extent the propositions of the learned Judges in Periannan 's case (supra) the tenability of which we doubted, can no longer be held to be good law in view of this Court 's decision in Chidambaram 's case (supra) and P. Venkataswami vs
D.S. Ramireddy, In P. Venkataswami vs
D.S. Ramireddy (supra) the question was whether the landlord was entitled to ryotwari patta.
The High Court applied the tests in Pariannan 's case.
Referring to the provisions of Sections 13 and 15(1) of the Estates Abolition Act (which we have quoted earlier).and reiterating what was said in Chidambaram 's case this Court held: "Thus even on the provisions of the Madras Estat is Land Act, 1908 considered by the Madras Full Bench, this Court appears to have taken a different view.
Apart from this, the provisions we are concerned with, namely, Section 13(b)(iii) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 requires as a condition `that the landholder has cultivated such lands himself, by his own servants or hired labour '.
We are unable to agree that the 422 words `has cultivated ' could imply a mere intention to cultivate.
Apart from Article 141 of the Constitution of India we are of the opinion that the decision in Chidambaram and Venka taswarni are in consonance with the objects and purposes of the Estates Land Act, the Estate Abolition Act, the Inam (Abolition and Conversion into Ryotwari) Act and the accept ed objectives of the land reforms legislation.
We now take up the question as to who were entitled to ryotwari pattas in this case.
The landholders admitted that if the Pariannan 's tests were not applicable, they would not be entitled to ryotwari patta.
Even so we proceed to examine the question on the facts on record.
As defined in section 3(15) of the Estates Land Act, "ryot" means a person who holds for the purpose of agriculture ryoti land in an estate on condi tion of paying to the landholder the rent which is legally due upon it.
Under the Explanation, a person who has occu pied ryoti land for a continuous period of 12 years shall be deemed to be a ryot for all the purposes of this Act.
This Explanation was added by the Estates Land Amendment Act, 1934 (Act VIII of 1934).
The conferment of occupancy right on the ryot in ryoti land was an object of the Estates Land Act.
The original Section 6 dealing with occupancy right in ryoti land was substituted by Section 5 of the Amendment Act VIII of 1934.
Thereafter also it has undergone several amendments.
At the relevant time it stood as follows: "6.
Occupancy right in ryoti land: (1) Subject to the provi sions of this Act, every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land situated in the estate of such landholder shall have a permanent right of occupancy in his holding.
Explanation: (1) For the purposes of this sub section, the expression `every ryot now in possession ' shall include every person who, having held land as a ryot, continues in possession of such land at the commencement of this Act.
Explanation: (2) In relation to any inam village which was not an estate before the commencement of the Andhra Pradesh (Andhra Area) Estates Land (Third Amendment) Act, 1936, but became an estate by virtue of that Act, or in relation to any land in an inam village which ceased to be part 423 of an estate before the commencement of that Act, the ex pression `now ' and `commencement of this Act ' in this sub section and Explanation (1) shall be construed as meaning the thirtieth day of June, 1934, and the expression `hereaf ter ' in this sub section shall be construed as meaning the period after the thirtieth day of June, 1934.
Explanation: (3) In relation to any hamlet, or khandriga in an inam village which was not an estate before the commence ment of the Andhra Pradesh (Andhra Area) Estates Land (Amendment) Act, 1936, but became an estate by virtue of that Act, the expressions `now ' and `commencement of this Act ', in this sub section and Explanation (1) shall be construed as meaning the Seventh day of January 1948, and the expression `hereafter ' in this sub section shall be construed as meaning the period after the seventh day of January, 1948.
Explanation: (4) Every landholder who receives or recovers any payment under Section 163 from any person unauthorizedly occupying ryoti land shall be deemed to have thereby admit ted such person into possession unless within two years from the date of receipt of recovery of payment or the first of such payments, if more than one, he shall file a suit in a Civil Court for ejectment against such person.
(2) Admission to waste land under a contract for the pasturage of cattle and admission to land reserved bona fide by a landholder for raising a garden or tope or for forest under a contract for the temporary cultivation there of with agricultural crops shall not by itself confer upon the person so admitted a permanent right of occupancy; nor shall such land, by reason only of such letting or temporary cultivation, become ryoti land." (3, 4, 5 and 6 are not extracted) Section 6 A which was inserted by the Amendment Act VIII of 1934 provided that a person having a right of occupancy in land does not lose it by subsequently becoming interested in the land as landholder or by subsequently holding land as an ijaadar or farmer of rent.
Section 8 provided for merger of occupancy rights and said: 424 "Whenever before or after the commencement of this Act the occupancy right in any ryoti land vests in the landholder, he shall have no right to hold the land as a ryot but shall hold it as a landholder, but nothing in this sub section shall prejudicially affect the rights of any third person.
(2) Whenever before or after the commencement of this Act the occupancy right in any ryoti land vests in any co landholders, he shall be entitled to hold the land sub ject to the payments to his co landholders of the shares of the rent which may from time to time payable to them and if such co landholder lets the land to a third person; such third person, shall be deemed to be a ryot in respect of the land.
(3) The merger, if any, of the occupancy right under sub sections (1) and (2) shall not have the effect of converting ryoti land into private land.
(4) Where after the passing of the Act, the inter est of the ryot in the holding passes to the landholder by inheritance, the landholder shall notwithstanding anything contained in this Act have the right, for a period of twelve years from the date of succession, of admitting any person to the possession of such land on such terms as may be agreed upon between them.
(5) If before the first day of November 1933, the landholder has obtained in respect of any land in an estate within the meaning of sub clause (d) of clause (2) of Sec tion 3 a final decree or order of a competent Civil Court establishing that the tenant has no occupancy right in such land, and no tenant has acquired any occupancy right in such land before the commencement of the Andhra Pradesh (Andhra Area) Estates Land (Third Amendment) Act, 1936, the land holder shall, if the land is not private land within the meaning of this Act, have the right, notwithstanding any thing contained in this Act, for a period of twelve years from the commencement of the Andhra Pradesh (Andhra Area) Estates Land (Third Amendment) Act, 1936, of admitting any person to the possession of such land on such terms as may be agreed upon between them; 425 Provided that nothing contained in this sub section shall be deemed during the said period of twelve years or any part thereof to affect the validity of any agreement between the landholder and the tenant subsisting at the commencement of the Andhra Pradesh (Andhra Area) Estates Land (Third Amendment) Act, 1936".
Section 9 provided that no landholder shall as such be entitled to eject a ryot from his holding or any part hereof otherwise than in accordance with the provisions of this Act.
Section 10 made the occupancy rights heritable and transferable providing that "all rights of occupancy shall be heritable, and shall be transferable by sale, gift or otherwise.
" If a ryot dies intestate without leaving any heirs except the Government, his right of occupancy shall be extinguished but the land.
in respect of which he has such right of occupancy shall not cease to be ryoti land.
The Estates Abolition Act accepted the same definitions of occupancy right and ryot as in the Estate Land Act.
The above provisions conferred permanent, heritable and trans ferable right of occupancy on the tenant.
This right stemmed from the will of the legislature and involved an element of social engineering through law star pro ratione voluntas populi: the will of the people stands in place of a reason.
The right of the landholder to keep his private land to himself has therefore to be interpreted in its proper per spective.
Statuta pro publico late interpretatur.
Statute made for the public good ought to be liberally construed.
The concept of past or present intention of the landholder to resume personal cultivation of land let out to a tenant and still in possession of the tenant has to be strictly construed against the landlord and liberally in favour of the tenant.
The aforesaid doubtful propositions formulated by the learned Judges in Periannan 's case must, therefore, be held to be erroneous.
For the same reason the observation of the Division Bench in this case that the decision in Periannan 's case is still good law in face of the decision of this Court in Chidambaram (supra), and subsequent deci sion in Venkataswami 's case (supra) must be held to be equally erroneous and to that extent must be overruled and the decisions in Zamindar of Chellapalli vs Rajalapati Somayya, (supra); Jagadeesam Pillai vs Kuppammal, (supra) and in Parish Priest of Karayar Parish vs Thiagarajaswami Devasthanam, (supra) must be held to have been correctly decided.
We have no doubt that the formation and development of the land revenue system in Madras will justify the view we have taken in the facts of this case.
The formation of the Madras Presidency was by 426 successive acquisitions by the East India Company.
The State of Andhra Pradesh was curved out of Madras.
Baden Powell in Land System of British India, Vol.
3 p. 5 wrote in 1892: "In tracing the progress of the Madras Land Revenue System, it will be advisable in the first place to review the gener al course of acquisition, by which the Madras district became British, and next to describe, in a brief and general manner, the various stages of the history of the early revenue management.
Commencing with the settlement (above alluded to) in the Baramahal (1792 98), which was soon followed by those of Coimbatore (1799), the ceded districts (1800), and the Carnatik Districts (1801), we shall see how the first raiyatwari system, or rather systems, were over thrown for a time by an attempt to make a general zamindari settlement (1801 1808); how on the failure of the attempt, a proposal for `village settlements ' (in the sense of granting leases for the whole village, to a renter, a headman, or a joint body of inhabitants) was tried with various success for a few years; and how, in the end, a raiyatwari assess ment was finally ordered ( 18 12 18 18).
" Ryotwari indicates a system where each field or holding is dealt with separately, and where the holder is free to pay the revenue and keep the field, or free himself by giving it up, as he pleases.
The first general acquisition of territory by the East India Company the first from a revenue point of view, was the country around Madras, known as `Jagir ' because it was originally granted by the Nawab of the Karnatik as a Jagir; the revenue thus assigned was intended as a contribution towards the expenses of the wars undertaken in aid of the Nawab.
The next acquisition in point of time was that of the Northern Sirkars (often written `Circar ').
These territories were granted in 1765 by the Delhi Emperor; but the Madras Government, looking to the practical claim of the Nizam of Dakhan, who was hardly even in name subject to Delhi, also obtained a grant from him in 1768.
The five administrative divisions known to the Mughal system as `Sirkar ' were those of chicacole (chikakol) Srikakulam, Rajahmundry (Rajamahen driveram), Eliore (Alur), Mustafanagar .(or Kandafiti), and Murtazanagar (Gantur or Kandavid).
Later they formed the districts of Vizagapatam (Visakhapatnam), Gangam, Kishna and Godavari.
427 The northern Sikars had been brought under Muhammadan domin ion first in 1471 A.D., and had various fortunes under the different contending dynasties.
In 1687, Aurangazeb 's con quest of the Dakhan added them to the Mughal empire, and they were ultimately taken over by the Subedar of the Dakhan (Nizam ul Mulk) nominally from the Emperor Karukhsir in 1713 A.D. "These came at once under British administration.
It was found that they consisted (1) of lands settled under zamin dars, as in Bengal, (2) of haveIi lands, those reserved for the support of the royal family and its immediate depend ants, and therefore `crown ' property.
Such a state of things invited the application of the Bengal system; the zamindars were accordingly left in possession and the haveIi lands were parcelled out and leased to revenue farmers for a term of years.
The Jagir lands were in 1780, divided into blocks and put under a similar system of revenue leases.
" When the Board of Revenue issued instructions to adopt a system of village lesses so as to prepare for some form of zamindari settlement, i.e. one man should be made answerable for the revenue of each village or other estate after the passing of Permanent Settlement Regulations in Bengal.
The Zamindari Regulation No. XXV was passed in 1802 and by 1805 introduction of the system was effected.
In the Northern Sirkars land was permanently settled with the zamindars; and the `HaveIi ' lands were made into percels or mutthas, and sold to the highest bidder.
The Mutthadars (or Mittadars) became the proprietors and permanent settlement holders.
Each settlement became an estate.
In some districts the `poligars ' became landlords holding sanad i milkiat i istim rar or title deed of perpetual ownership their estates being called `settled polliems '.
According to Paden Powell the zamindari estates were found chiefly in the North East ern districts and especially in the Ganjam and Vizagapatam districts.
There were also few Feudatory States which paid only a fixed tribute.
The village leases continued with some form of joint or individual middlemen with varying periods of 3 to 10 years made with a view to eventual permanency.
But the system was not successful.
Between the ryotwari and village lease system the general difference was that the ryotwari only assessed the `field ' or survey unit, and left the ryot. to hold it or not as he pleased, provided he gave notice of his intention in proper time; if he kept the field he must pay the assessment that was all.
The lease system involved payment of a certain sum for a fixed area, whether the land was cultivated or not.
It was no use 428 for the middlemen lease holder to throw up his land, for that would not relieve him of his contract liability.
The idea was to make the villagers jointly and severally respon sible, though the lease was to the head inhabitants of each village.
Desire was to see a system under which the proprie tary inhabitants at large of each village should enter into engagements with the Government, and derive a common and exclusive interest in the cultivation of their lands in proportion of their right of property.
Ultimately the Ryotwari system was adopted.
The end of the lease proposals and the village system inquiry was that the home authorities, as Baden Powell says, probably influ enced by the opinion of Munro, who visited England in 1807, finally decided for the Ryotwari system as it was believed that the village system failed.
Hence the Estates Abolition Act protected the rights of the ryots by defining private land on the one hand and preserving the occupancy rights of the ryots on the other.
In doing so the two concepts of `private land ' and `ryoti ' land along with those of `estate ' and `occupancy ' assumed significance.
The two villages concerned in the instant case are said to be inam viiages.
But the origin of the lands in dispute was admittedly not known.
The characteristics of the inam estates and the rights and liabilities of the Inamdars from time to time have therefore to be taken into account.
Baden Powell wrote at pp.78 80 Vol. 3: Section Ill Settlement of inam Claims. "The Settlement, as we have seen, only assesses the land under raiyatwari tenure.
If, however, there is land in the village, consisting of a few fields or even a division of the village, held revenue free, or at a reduced rate, such an area is shown in the village registers.
But it may be that a whole village is `inam '.
If so, it constitute a separate estate, like a Zamindari or a `pollam ', and does not come within the scope of the Settle ment.
Government has no claim to the land or to the revenue, unless there is a fixed quit rent, which is recorded as is the permanently settled revenue or `peshkash ' of the Zamind ari or pollam estate.
There was accordingly a special proce dure under which the right and title of the holders of these favoured estates was elucidated and put on a sound 429 basis; and the quit rent, Or reduced rate, where the estate is not entirely revenue free, determined by rule.
All native governments were in the habit of reward ing favourites, providing for the support of mosques, tem ples, religious schools, shrines, and for almsgiving and the maintenance of Brahmans or Muhmmadan saints, & C., by grant ing the revenue on the land, whether they granted the land itself or not." The Inam Commission of Madras appointed on 16.11.
1858 had the task of validating and issuing title deeds for inams lawfully in possession for fifty years and in resuming others, or commuting them for money pensions.
The Commission dealt with all kinds whether they included right in the lard or only Government revenue; they were: (1) Inams proper, where the land granted, was either a field, or a village, or a group of villages.
(2) Muhammadan jagirs, which were personal grants and might or might not include the land.
(3) Shrotriyams (Srotriyam) and agraharams, grants certain (different) classes of Branmans which did not give more than the revenue, leaving the land in its original occupancy, unless it could be shown that the occupancy was also granted.
The following nine kinds of inams (classified according to their object or purpose) were enumerated: (1) For religious institutions and services connect ed therewith.
Nearly a million and a half acres were so assigned, including temples, pagodas, and mosques.
The largest grants were in the southern districts.
(2) For purposes of public utility.
Such as support of chatrams (places where refreshment was given gratuitous ly), water pandais (drinking places), topes or groves, flower gardens for temple service (mandavanam), schools (Patshalas), for maintaining bridges, ponds and tanks, etc.
430 (3) `Dasabandham ' inams for the construction, mainte nance, and repair of irrigation works in the Ceded dis tricts, in Kistna, Nellore, North Arcot and Salem.
(4) To Brahmans and other religious persons for their maintenance called `Bhatavritti ' and (Muhammadan `Khairat '.
They formed nearly half the inams of the Presidency, and covered more than three and a half million acres.
(5) Maintenance grants for the families of poligars and ancient land officers.
These were grants to families of dispossessed poligars in Baramahal and the ceded districts; to Kanungos (Chingleput), and to Deshmukhs etc.
(6) Lands alienated for the support of members of the family (also for religious persons) by poligars, etc.
These were the `bisai ' (bissoye), doratanam, mukhasa, jivitham, arearam (North Arcot) umlikai, etc.
(7) Grants connected with the general police of the country under former rulers: Such were `kattubadis '.
(8) Grants to village headmen, karnams, and village police (Gramamaniyam, etc. ).
(9) Grants to village artisans, where they were not paid by the fees called merai (or in addition to them).
The Commission also took up enfranchisement of the inams, i.e. to convert into his own private property by payment of a moderate quit rent.
From this the inams could be classified as (1) still unenfranchised; (2) enfranchised but liable to jodi or quit rent as the case may be; (3) enfranchised, the rent being commuted or redeemed.
The Commission work was closed in November 1869.
A member of the Board of Revenue continued thereafter.
The nature and histo ry of the inam villages would, therefore, have been helpful in deciding the claims.
It was perhaps easier for the landholders to trace the origin of the inam villages than for the tenants to do so.
Admittedly that was not done.
We have also considered the question of practice and pre sump 431 tions if any in this regard.
By Madras Act VIII of 1865 it was enacted that inamdars and other landholders should enter into written agreements with their tenants, the engagements of the land owners being termed pattas and those of tenants being termed Muchlika.
The patta should contain, amongst other things, "all other special terms by which, it is intended the parties shall be bound.
The muckhlika should at the option of the landholders, be counterpart of the patta, or a simple engagement to hold according to the terms of the patta.
In the instant case the pattas and the muchlikas are not claimed to have shown anything to establish the lands to be private lands.
Only the facts of occasional change of tenants and rents have been shown.
The Privy Council in Suryanarayana vs Patanna, [1918] 41 ILR Madras 10 12, where the decision of the appeal mainly depended on the question whether the Agraharam Village of Korraguntapalem in the Northern Circars of then Presidency of Madras was an estate, observed that the "term kudivaram is not defined in the Act.
It is a tamil word, and literally signifies a cultivator 's share in the produce of the land held by him as distinguished from the landlord 's share in the produce of the land received by him as the rent.
The landlord 's share is sometimes designated `melvaram" The Privy Council held that there was no presumption of law to the effect that in the case of an inamdar it should be presumed, in the absence of inam grant under which he held, that the grant was of the royal share of the revenue only.
"In their Lordships ' opinion there is no such presump tion of law.
But a grant of a village by or on behalf of the Crown under the British rule is in law to be presumed to be subject to such rights of occupancy, if any, as the cultiva tors at the time of grant may have had.
" As against the above, we now have the statutory presumptions in Section 185(3) of the Estates and Act, namely, "that the land shall be presumed not to be private land until the contrary is proved," and in case of estate within the meaning of sub clause (d) of clause (2) the second proviso (i) and (ii).
This evolution of the land revenue system concerned is likely to remind one of what Sir Henry Maine showed in his Ancient Law, "that in early times the only social brother hood recognised was that of kinship, and that almost every form of social organisation, tribe, guild, and religious fraternity, was conceived under a similitude of it.
Feudal ism, converted the village community based on a real or assumed consanguinity of its members, into the fief in which the relations of tenant and lord were those of contract, while those of the 432 unfree tenant rested on status.
" It also reminds one what was said in the context of rights over land. "This earth", says Jagannatha, "is the cow which grants every wish; she affords property of a hundred various kinds (inferior, if the owner need the assent of another proprietor superior, if his right precede assent); while she deludes hundred owners, like a deceiving harlot, with the illusion of false enjoy ment; for, in truth, there is no other lord of this earth but one, the Supreme Lord.
" For the foregoing reasons we set aside the impugned Judgment, restore that of the learned Single Judge and allow the appeals.
We leave the parties to bear their own costs in these appeals.
R.S.S. Appeals allowed.
|
The appellants are the tenants and the respondents are the landholders in respect of the tenanted agricultural lands of the hitherto inam estates.
After the coming into force of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948.
the inam estates were abolished, the land stood vested in the Government free of all encumbrances, and the pre existing rights, title and interest of erstwhile landholders ceased except to claim ryotwari patta.
The respondents landholders claimed that the lands, in question, were either under their personal cultivation or they intended to resume those for private cultivation, and as such those were their private lands and they were enti tled to ryotwari pattas.
The appellants tenants on the contrary claimed that those lands were neither under the personal cultivation of the landholders nor the landlords intended to resume those for personal cultivation, but were in possession of the tenants who were entitled to ryotwari pattas after the abolition of the estates.
The Settlement Officer, after making inquiry under section 15 of the Estates Abolition Act, held that the landholders failed to establish that they were personally cultivating the lands or that they intended to resume the lands for personal cultivation, and as such rejected their claims.
The landholders ' appeals to the Estates Abolition Tribu nal were allowed.
The Tribunal held that the landholders were entitled to the grant of ryotwari pattas as the lands were private lands within the meaning of section 3 (10)(b)(i) of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908 and that the tenants were not entitled to ryotwari pattas in respect of the same.
394 The appellants tenants moved writ petitions before the High Court.
The learned Single Judge observed that it was common ground before the Subordinate Tribunal, as well as before him, that the nature of the lands at the inception, whether ryoti or private, was not known; that the burden of establishing that the lands were private lands was on the landholders; and that it was also common ground before him that apart from the fact that there were occasional changes of tenants, and the lands were sometimes leased under short term leases, there were no other circumstances indi cating that the landholders intended to resume cultivation of the lands.
The learned Single Judge held that after the pronouncement of this Court in Chidambaram Chettiar vs Santhanaramaswamy Odayar, the decision of the Full Bench of the Madras High Court in Periannan vs Amman Kovil, AIR 1952 Mad. 323 (F.B.) could no longer be considered good law, and further that the decision in Jag deesam Pillai vs Kuppammal, ILR and in Perish Priest of Narayar vs Thingaraja Swami Devasthanam, App.
176 178 and 493 of 1946, once more held the field.
It was also observed that since in all the cases the only mode of proof attempted by the landholders was the grant of short term leases and change of tenants and rent, it must be held that the lands were not established to be private lands and that no attempt was made to prove personal cultivation or any intention to resume personal cultivation.
The Division Bench, in writ appeals filed by the land holders, held that, in the first place, the observations of this Court in Chidambaram 's case were in accord with the rule in Periannan 's case, and secondly, even if some of the dicta in the judgment of this Court in Chidambaram suggested a contrary principle, the effect of the entire observations did not support the contention that Periannan 's case had been impliedly overruled by this Court.
Before this Court, it was inter alia contended on behalf of the appellants tenants (i) that the learned Single Judge having found as fact that the landholders had failed to establish that the lands were their private lands as these were neither under their personal cultivation nor they were intended to be resumed for personal cultivation, and applying the rule in Chidambaram 's case, the learned Single Judge having held that the lands were not private lands, the Division Bench erred in holding to the contrary; (ii) that the learned Single Judge correctly held that Perriannan 's case was no longer good law as in Chidambaram Chettiar vs Santhanaramaswamy Odayar, it was held that the definition of private land in section 3(10) of the Estate Land Act of 1908 read as a whole indicated clearly that the ordinary test for private land was the 395 test of retention by the landholder for his own personal use and cultivation by him or under his personal supervision, though they might be let on short leases; (iii) that it was not the intention or the scheme of the Act to treat as private those lands with reference to which the only pecul iarity was the fact that the landholder owned both the varams in the land and had been letting them out on short leases; and (iv) that the Division Bench erred in holding that Periannan 's tests were still applicable.
On the other hand, it was contended that the correct tests for determining what was private land had been laid down in Periannan 's case, which were not different from those of Chidambaram 's case, and the Division Bench correct ly applied those tests to find that the lands were private lands of the landholders.
Allowing the appeals, setting aside the judgment of the Division Bench, and restoring that of the learned Single Judge, this Court, HELD: (1) To find out whether a village was designated as inam village or not, prima facie the revenue accounts of the Government which were there at the time of the Inam Abolition Act came into force had to be looked into.
If it was so shown, no further proof was necessary.
Only when the entries in the revenue accounts were ambiguous, and it was not possible to come to a definite conclusion, it might be necessary to consider other relevant evidence which was admissible under the Evidence Act.
[406H; 407A B] (2) An interpretation of the words "private land" and "ryoti land" had to be made in consonance with the legisla tive purpose, provisions and scheme of the enactment.
Inter pretare at Concordare leges legibus, est optimus interpre tundi modus.
To interpret and in such a way as to harmonize laws with laws in the best mode of interpretation.
[410E] (3) The Estate Abolition Act accepted the definitions of occupancy right and ryoti as in the Estates Land Act, 1908.
The above provisions conferred permanent, heritable and transferable right of occupancy on the Tenant.
This right stemmed from the will of the legislature and involved an element of social engineering through law star pro rationa voluntas populi: the will of the people stands in place of reason.
The right of the landholder to keep his private land to himself has therefore to be interpreted in its proper perspective.
Statuta pro publico late interpretaur.
Statute made for the public good ought to be liberally construed.
[425E F] 396 (4) The concept of past or present intention of the landholder to resume personal cultivation of land let out to a tenant and still in possession of the tenant has to be strictly construed against the landlord and liberally in favour of the tenant.
[425E] The learned Single Judge in the instant case rightly observed that the legislature did not use the word domain or home farm land without attaching to them a meaning, and it was reasonable to suppose that they would attach to those words the meaning which would be given to them in ordinary English, namely, to connote land appurtenant to the mansion of the lord of the manor kept by the lord for his personal use and cultivated under his personal supervision is dis tinct from land let to tenant to be farmed without any control from the lord of the manor other than such control as incident to the lease.
To that extent, the propositions of the learned Judges in Periannan 's case can no longer be held to be good law in view of this Court 's decisions in Chidambaram 's case and Venkataswami 's case, and the decision in Zamindar of Challapali vs Rajalapati/Jagadesan Pillai vs Kuppamal, and in Parish Priest of Karayar Perish vs Thiapa rajaswami Devasthanam mast be held to have been correctly decided.
[421C E] Zamindar of Chellapalli vs Rajalapato Somayya, 39 Mad. 341; Jagadeesam Pillai vs Kuppamal, ILR ; Parish Priest of Karayar Parish vs Thiagarajaswami Devastha nam, App.
176 178 & 493 of 1946; Chidambaram Chettiar vs Santhanaramaswamy Odayar, ; ; Yerlagadda Malikarjuna Prasad Nayudu vs Somayya, ILR PC; P. Venkataswami
D.S. Ramireddy, ; Suryanara yana vs Patanna, , referred to.
Periannan vs Amman Kovil, AIR 1952 Mad.
323 F.B. partly overruled.
(6) In the instant case the pattas and the muchilkas are not claimed to have shown anything to establish the lands to be private lands.
Only the facts of occasional change of tenants and rents have been shown.
[431B]
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No. 13347 of 1983.
(Under Article 32 of the Constitution of India).
K.K. Venugopal, C.S. Vaidyanathan and K.V. Viswana than for the Petitioner.
P.K. Goswami,Additional Solicitor General, P.S. Poti, K. Parasaran, S.S. Javalai, and F.S. Nariman, B.V. Acharya, Advocate General, P.R. Ramasesh, Ms. A. Subhashini, T.T. Kunhikanan, V. Krishnamurthy, K. Ramkumar and R. Karuppan, in person the Respondents.
86 The Judgment of the Court was delivered by RANGANATH MISRA, J.
This is an application under Article 32 of the Constitution filed by the Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam which is said to be a society registered under the Tamil Nadu Societies Registration Act asking this Court for direction to the Union of India, respondent No. 1, to refer the dispute relating to the water utilisation of the Cauvery river and equitable distribution thereof in terms of section 4 of the , and for a mandamus to the State of Karnataka not to proceed with the construction of dams, projects and reservoirs across the said river and/or on any of its tributaries within the State and to restore supply of water to the State of Tamil Nadu as envisaged in the agreements dated 18th of February, 1924.
To the petition States of Karnataka, Tamil Nadu and Kerala and the Union Territory of Pondicherry have been added as re spondents 2 to 5 respectively.
In the petition it has been alleged that the petition er 's society is an organisation of agriculturists of Tamil Nadu and they are entitled to the lower reparian rights of Cauvery river for cultivating their lands over the years.
The petitioner alleges that inflow into the Cauvery at the Mettur dam point as also down the stream has considerably diminished due to construction of new dams, projects and reservoirs across river Cauvery and its tributaries by the State of Karnataka within its own boundaries.
In the year 1970 the State of Tamil Nadu had requested the Union of India to set up a tribunal and refer the question of equita ble distribution of Cauvery waters under section 3 of the Act.
A suit filed under Article 131 of the Constitution by the Tamil Nadu State in this Court was withdrawn on politi cal consideration and in anticipation of the evolving of a mutual and negotiated settlement.
Petitions of the present type had also been filed in this Court being writ petitions Nos. 303 and 304 of 1971 but on 24.7.75 they were withdrawn on account of suspension of the Fundamental Rights during the period of Emergency.
Petitioner has further alleged that the sharing of the Cauvery waters between the then Madras State and the then princely State of Mysore was covered by a set of agreements reached in 1892 and 1924.
According to the petitioner several attempts were made through bilateral and multilateral talks for a negotiated settlement for equitable distribution of the Cauvery waters but no solution could be reached and the problem continued.
Since we are not on the merits of the matter relating to distribution of waters it is unnecessary to give any details of the further pleadings.
87 The State of Karnataka by filing several affidavits has opposed the maintainability of the petition as also the tenability of the plea for relief.
The Union of India in the Ministry of Water Resources has also opposed the maintain ability of the application.
Reliance has been placed on section 11 of the Act to which we shall presently made a reference.
At the hearing, Mr. Nariman on behalf of the State of Karnataka along with the Advocate General of the State and the Solicitor General appearing for the Union of India have reiterated the aforesaid stands.
The State of Tamil Nadu filed an affidavit in this Court on 6th of May, 1987, wherein it not only supported the contention of the petitioner but effectively joined the dispute by adopting the stand of the petitioner.
The State of Kerala has left the matter to the good sense of Union of India to bring about an amicable settlement.
At the hearing of the matter the Union Territory of Pondicherry was not represented though we were told that their stand was common with that of the State of Tamil Nadu.
This petition was filed on November 18, 1983; on 12.12.83 this Court directed issue of notice and as already pointed out the State of Tamil Nadu by its affidavit of 6th of May, 1987, came to the support the petitioner in toto.
The adoption by the State of Tamil Nadu of the petitioner 's stand by associating itself with the petitioner is perhaps total.
Before this Court, societies like the petitioner as also the State of Tamil Nadu and earlier applied for the same relief as the petitioner seeks.
In view of the fact that the State of Tamil Nadu has now supported the petitioner entirely and without any reservation and the Court has kept the matter before it for about 7 years, now to throw out the petition at this stage by accepting the objection raised on behalf of the State of Karnataka that a petition of a society like the petitioner for the relief indicated is not maintainable would be ignoring the actual state of affairs, would be too technical an approach and in our view would be wholly unfair and unjust.
Accordingly, we treat this petition as one in which the State of Tamil Nadu is indeed the petitioner though we have not made a formal order of transposition in the absence of a specific request.
The main stream of river Cauvery has its origin in the hills of Coorg.
Some tributaries have their origin in the State of Kerala while some having their origin in Karnataka have joined the river.
The 88 river flows for a distance of about 300 Kms.
within the State of Karnataka and almost an equal span within the State of Tamil Nadu before it ultimately joins the Bay of Bengal.
It has not been disputed that Cauvery is an inter State.
river within the meaning of Article 262 of the Constitution.
Entry 56 of List I of the Seventh Schedule to the Constitu tion runs thus: "56.
Regulation and development of inter State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
" Article 262 provides: "Adjudication of disputes relating to waters of inter State rivers or river valleys (1) Parliament may by law provide for the adjudication of any dispute or complaint with re spect to the use, distribution or control of the waters of, or in, any inter State river or, river valley.
(2) Notwithstanding anything in this Constitution, Parlia ment may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).
" It is not disputed before us that the (33 of 1956) is a legislation within the meaning of this Article.
Section 3 of the Act provides: "3.
If it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitance there of, in the waters of an inter State river or river valley have 1Seen, or are likely to be, affected prejudicially by (a). . . . (b). . . . (c). . . . 89 the State Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a tribunal for adjudication.
" Section 11 of the Act provides: "11.
Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.
It is thus clear that section 11 of the Act bars the juris diction of all courts including this Court to entertain adjudication of disputes which are referable to a tribunal under section 3 of the Act.
Therefore, this Court has no juris diction to enter upon the factual aspects raised in the writ petition.
No serious dispute, however, has been raised before us challenging our jurisdiction to consider the claim in the writ petition confined to the question of a reference of the dispute to a tribunal within the meaning of section 3 of the Act.
Section 4 of the Act provides: "4.
(1) When any request under section 3 is received from any State Government in respect of any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, the Central Government shall, by notification in the official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water dispute.
(2). . . . (3). . . .
Undoubtedly section 4 while vesting power in the Central Government for setting up a Tribunal has made it conditional upon the forming of the requisite opinion by the Central Government.
The dispute in question is one over which the people and the State of Tamil Nadu have been clamouring for more than 20 years now.
The matter has been pending in this Court for more than 6 1/2 years.
It is on record that during this period as many as 26 sittings spread over many years have been held in which the Chief Ministers of the Karnataka and Tamil Nadu have unsuccessfully tried to bring about settlement; some of 90 these have been at the instance of the Central Government in which the Union Minister for Water Resources and others have participated.
There was a time, after the dispute arose, when the Governments in the States of Karnataka and Tamil Nadu as also at the Centre were run by one common political party.
Perhaps if the Centre had intervened in an effective way during that period there was considerable chance of settle ment by negotiation.
No serious attempt seems to have been made at that time to have the dispute resolved and it has been shelved and allowed to catch up momentum and give rise to issues of sensitivity.
This case after a number of ad journments freely granted by this Court in view of the nature of the subject matter, was called on 26.2.1990 when the following order was made: "The writ petition is adjourned to 24.4.1990 for final hearing and is to be listed at the top of the board.
No further adjournment shall be granted.
The Advocate Generals of the States of Karnataka and Tamil Nadu are present in Court.
Learned Solicitor General is also present.
Counsel in W.P. No. 13347/83 in sists that the matter should not be further adjourned as several adjournments on the same plea of reconciliation between the two States have not borne any fruit.
Learned Solicitor General has told us that in course of the month of March, the Chief Ministers of the two States shall meet.
He has also told that in the month of February a meeting of Chief Ministers of Kerala, Karnataka, Tamil Nadu and Pondi cherry had been called but that could not be held on account of the air crash at Bangalore.
In these circumstances, leaving the parties to negotiate, we have decided that the matter shall now be heard on merits in the event no settle ment takes place by then.
" A long adjournment of about two months was then granted to provide a further opportunity of negotiation.
We have now been told that the two Chief Ministers met on the 19th of April, 1990, and a further meeting was stipulated to be held on the following day when the Minister of Water Resources of the Central ' Government was also to participate.
The meeting of the two Chief Ministers failed to bring about any result and the meeting stipulated for the following day for some reason or the other did not take place.
When we heard the matter on the 24th of April, 1990, the counsel for the State of Tamil 91 Nadu in clearest terms indicated that the Chief Minister of the State was not further prepared to join the negotiating table.
An affidavit along with the telex message received from Madras supporting its stand has now been made a part of the record.
26 attempts within a period of four to five years and several more adjournments by this Court to accommodate these attempts for negotiation were certainly sufficient opportu nity and time to these two States at the behest of the Centre or otherwise to negotiate the settlement.
Since these attempts have failed, it would be reasonable undoubtedly to hold that the dispute cannot be settled by negotiations.
Yet, since the requisite opinion to be formed is of the Central Government as required by s 4 of the Act when we reserved judgment on the 24th of April, 1990, we allowed two days ' time to the learned Additional Solicitor General for the Central Government to report to the Court the reaction of the Central Government.
Mr. Goswami, learned Additional Solicitor General appearing for the Union of India informed us on the 26th April, 1990, in the presence of the counsel for the other parties that the Central Government did not want to undertake any further negotiation and left the matter for disposal by the Court.
In these circumstances, we have no option but to conclude that a clear picture has emerged that settlement by negotiation cannot be arrived at and taking the developments in the matter as indicated above it must be held that the Central Government is also of that opinion particularly when the Chief Minister of Tamil Nadu has indicated that he is no more prepared to loin the nego tiations.
We are cognizant of the fact that the matter is a very sensitive one.
Judicial notice can be taken of the fact that the Government at the Centre is by one political party while the respective Governments in the two States are run by different political parties.
The dispute involved is, howev er, one which affects the southern States of Kerala, Karna taka and Tamil Nadu and the Union Territory of Pondicherry.
The disputes of this nature have the potentiality of creat ing avoidable feelings of bitterness among _the peoples of the States concerned.
The longer the disputes linger, more the bitterness.
The Central Government as the guardian of the interests of the people in all the States must, there fore, on all such occasions take prompt steps to set the Constitutional machinery in motion.
Fortunately, the Parlia ment has by enacting the law vested the Central Government with the power to resolve such disputes effectively by referring the matter to an impartial Tribunal.
There was no reason, therefore, for the dispute to protract for such a long time.
Any further delay in taking the statutorily 92 mandate action is bound to exasperate the feelings further and lead to more bitterness.
It is, therefore, necessary that the legal machinery provided by the statute is set in motion before the dispute escalates.
A stitch in time saves nine.
What is true for an individual is perhaps more true for the nation.
Section 4 indicates that on the basis of the request referred to in section 3 of the Act, if Central Government is of the opinion that the water dispute cannot be settled by negotiation, it is mandatory for the ' Central Government to constitute a Tribunal for adjudication of the dispute.
We were shown the Bill where in section 4 the word 'may ' was used.
Parliament, however, substituted that word by 'shall ' in the Act.
Once we come to the conclusion that a stage has reached when the Central Government must be held to be of the opin ion that the water dispute can no longer be settled by negotiation, it thus becomes its obligation to constitute a Tribunal and refer the dispute to it as stipulated under section 4 of the Act.
We therefore, direct the Central Government to fulfil its statutory obligation and notify in the official gazette the constitution of an appropriate tribunal for the adjudication of the water dispute referred to in earlier part of this judgment.
We further direct that the same should be done within a period of one month from today.
The writ petition is accordingly allowed.
There shall, however, be no order as to costs.
S.B. Petition allowed.
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The appellant is a registered society of agriculturists of Tamil Nadu, who are entitled to riparian rights of Cauv ery river in cultivating their lands over the years.
It seeks from this Court that directions be given to the Union of India Respondent No. 1 to refer the dispute relating to the water utilization of the Cauvery river and equitable distribution thereof in terms of section 4 of the Inter State Water Disputes Act 1956.
Also to issue a mandamus to the State of Karnataka not to proceed to construct dam projects, reservoirs across the said river or its tribu taries within the state and to restore supply of water to the State of Tamil Nadu as envisaged in the agreements dated 18th February, 1924.
In this petition State of Karnataka, Tamil Nadu, Kerala and Union Territory of Pondicherry have also been added as Respondent No. 2 to 5 respectively.
In the year 1970, the State of Tamil Nadu requested Union of India to set up a Tribunal for settling the ques tion of equitable distribution of waters under sec.
3 of the Act.
A suit was filed under Article 131 of the Constitution in this Court but was withdrawn on political consideration so as to evolve a mutual and negotiated settlement.
According to the petitioners it is submitted that sever al attempts were made through bilateral and multilateral talks for a negotiated settlement but no solution could be reached and the problem continued 84 The State of Karnataka filed several affidavits opposing the maintainability of the petition and the Union of India has also opposed the application on the basis of section 11 of the Act.
The petition was filed on November 18, 1983 and on 12.12.83 the Court directed issue of notice.
The State of Tamil Nadu supported and associated itself with the peti tioner seeking the same relief on 6.5.87 the State also filed an affidavit in this Court supporting the contention of the petitioner and also effectively joined the dispute by adopting the stand of the petitioner.
The mainstream of the river Cauvery has its origin in the hills of Coorg.
Some tributaries of the river have origin in the State of Kerala and others in the State of Karnataka.
The river flows for about 300 Kms.
in the State of Karnataka and almost for an equal span within the State of Tamil Nadu before joining the Bay of Bengal.
It is an inter state river as per Article 262, Entry 56 of List I of 7th Schedule of the Constitution, so the regulation and development of the said river is under the control of the Union of India and is declared by Parliament by law to be expedient in the public interest.
Article 262 of the constitution provides for adjudica tion of disputes (1) with respect to the use, distribution and control of the waters (2) Parliament may by law provide that neither the Supreme Court or any other Court shall exercise jurisdiction in respect of any such dispute as is referred to in clause (1).
As per section 3 of the Act if it appears to the Govern ment of any State that a water dispute with the Government of another State has arisen or likely to arise and the interests of the State or of any of the inhabitance, thereof are likely to be affected prejudicially, the State Govern ment in the prescribed manner request the Central Government to refer the Water dispute to a Tribunal for adjudication.
Allowing the petition, this Court, HELD: This dispute in question is one over which the people and the State of Tamil Nadu have been clamouring for more than 20 years.
The matter has been pending in this Court for the last 6 1/2 years.
It is on 85 record that over these years 26 sittings of the Chief Minis ters of Karnataka, Tamil Nadu have been there and in some of these even the Central Ministers of Water Resources have also participated but have not succeeded in bringing about negotiated settlement.
No serious attempt seems to have been made to have the dispute resolved.
This Court has given several adjournments to accommodate the attempts for negoti ations because of the nature of the subject matter.
Ulti mately on 26.2.90 order by the Court was given that the Writ Petition would be listed for final hearing on 24.4.90 since sufficient opportunity and time to these two states at the behest of the Central Government or otherwise has been given to arrive at negotiated settlement.
On 26th April 1990 the Union of India also informed the Court that Central Govern ment did not want to undertake any further negotiations and left the matter for the disposal by this Court.
[89G H; 90B C; 91D] There was no reason for the dispute to protrect for such a long period.
Any further delay in taking statutority mandated action is bound to exasperate the feelings further and lead to more bitterness.
[91H; 92A] Section 4 of the Act indicates that on the basis of the request referred to in Section 3, if Central Government is of the opinion that water dispute cannot be settled by negotiation, it is mandatory for the Central Government to constitute a Tribunal for adjudication of the dispute.
[92B] The Central Government to fulfil the statutory obliga tion notify in the official Gazette the constitution of an appropriate tribunal for the adjudication of the Water Dispute.
The same should be done within a period of one month.
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t Petition No. 869 of 1988.
(Under Article 32 of the Constitution of India.) Govind Mukhoty, Naresh Kaushik and Ms. Lalitha Kaushik for the Petitioner.
V.C. Mahajan, Girish Chandra and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This is a petition under Article 32 of the Constitution of India, filed by the petitioner Union or Behalf of the employees of the Grih Kalyan Kendra for a declaration the Girh Kalayan Kendra wherein the Workers are employed is 'State ' within the meaning of Article 12 of the Constitution and for the issuance of a writ of mandamus directing the Union of India and the respondents to pay regular pay scales in parity with other employees performing similar work under the Union of India like New Delhi Municipal Committee and other Departments of Delhi Administration.
Grih Kalyan Kendra is a Society registered under the .
Its objectives as set out in the memorandum of Association are as follows: "(a) To promote social, economic, cultural and educational activities for the betterment of the Central Government employees and their families; (b) To impart technical and vocational training in home crafts and other house hold arts for useful utilisation of leisure time; and (c) To organise and promote economic activities that may provide opportunities for gainful employment to families Central Government employees for supplementing family incomes.
" 18 For attaining the aforesaid objectives, the Kendra has been conducting various activities including; (i) holding of craft classes for training in cutting, tailoring and embroidering for the house wives and grown up girls during their leisure hours; (ii) imparting nursery education for children in the age group of 3 to 7 years; (iii) running of creches or day care centres for children between the age of 90 days and 7 years; (iv) providing the recreational facilities like T.V. shows, libraries,gymnasia and in door games and sports at the samaj sadans (Community Halls); (v) conducting stitching of liveries for Class III (Group C) and Class IV (Group D) employees of Government Departments and Public Sector Undertakings.
The Kendra runs 29 nursery centres out of which 21 are in Delhi, 3 in Dehradun and one each at Faridabad, Nagpur, Jaipur, Bombay and Madras.
It also runs 43 crafts centres out of which 23 are in Delhi, 5 in Bombay, 8 in madras, 2 in Dehradun and one each at Jaipur, Nagpur, Faridabad, Narela and Bahadurgarh.
The Kendra also runs 19 centres for day care called creches out of which 16 are in Delhi and one each at Faridabad, Madras and Jaipur.
The Kendra conducts two production centres, one located at Delhi and the other at madras.
In these centres stitching of liveries for class III and Class IV employees of Government Departments and Public Sector Undertakings are undertaken with a view to provide gainful employment for dependent ladies members of the Government servants.
The Grih Kalyan Kendra is a welfare organisation working under the aegis of the Department of Personnel and Administrative Reforms, Ministry of Home Affairs.
The purpose and object of establishing the Kendras were to help needy Government servants especially those belonging to the lower income group by providing to their dependents opportunity of gainful work or training during their leisure time.
The scheme stipulated to ensure that the dependents of such Government servants should be able to supplement to meagre income of the family and to acquire skill and experience for obtaining employment elsewhere.
Initially, the employees of Kendra were paid honorarium only and at no time they had any regular scales of pay.
Some of the employees who work at the Centres are paid on piece rate basis.
The control and management of the Kendras vest in a board which consist of officers of the Department of Personnel.
The Union of India supplements the income of the Kendras by providing grants and monetary support.
The employees of the Grih Kalyan Kendra fall in two broad categories; (i) regular staff taken on deputation from other Central Government offices who draw their salaries in regular scale of pay alongwith the deputation and other allowances as admissi 19 ble to the Central Government employees; (ii) employees employed at the various centres of the kendra on ad hoc basis some of whom have been working on fixed salary called honorarium while others are working on the piece rate wages at the production centres without there being any provision for any scale of pay and other benefits like,gratuity, pension, provident fund etc.
The terms and conditions of tenure of service have not been regulated by any Rules framed by the Kendra.
The services of the employees falling in the second category are terminable at any time at the sweet will of the officers of the Kendras.
The petitioner has asserted that the employees of the Kendra are paid low wages and their salaries are far less than what is paid to the employees doing similar nature of work in the organisations like NDMC and other Departments of the Delhi Administration.
It is asserted that the Kendra is a 'State ' within the meaning of Article 12 of the Constitution and therefore the respondents are under constitutional obligation to prescribe similar scales of pay as applicable to the employees of NDMC and Delhi Administration and who are doing the same work as performed by the employees of the Kendra.
The petitioner has claimed relief for declaring the kendra to be an instrumentality of State and for the issue of a direction directing the respondents to pay equal pay as paid to the similar employees doing similar work in NDMC and other Departments of Delhi Administration, along with other benefits like gratuity, pension and provided fund.
The petitioner 's claim for equal pay as paid to the employees of NDMC and Delhi Administration is contested by the respondents.
In the counter affidavit filed on behalf of the respondents,it is asserted that the Grih Kalyan Kendra was started as a welfare society with the aim of helping the needy Government servants especially those belonging to lower income group by providing to their dependents opportunity of gainful work, so that, they might be able to supplement the meagre income of their family and at the same time they may also gain skill and experience in order to improve their career elsewhere.
Grih Kalyan Kendra was expected to be a stepping stone for such dependents of the poor Government servants and there was no intention to provide them with any regular employment.
it is further stated that in the nature of things and in consonance with original aim the employees of the Grih Kalyan Kendra were expected to leave the organisation once they have acquired skill and experience and seek other opportunity of employment for the betterment of their career elsewhere.
The employees of the Kendra were expected to leave the organisation once they lost the status of dependent of low paid 20 Government employees.
However, the employees of the Kendra have not met any of these expectations.
Some of the employees once inducted into the organisation have continued for a number of years.
The employees working in the Kendra are not regular employees and the duties performed by them are not comparable to any of the employees working under NDMC or any Department of Delhi Administration or under the Union of India.
The status of the kendra is a unique one where the work and duties performed by its employees are quite different in nature than those performed by the employees of NDMC and Delhi Administration.
Shri Govind Mukhoty learned counsel for the petitioner contended that though the Grih Kalyan Kendras are managed by the Board as contemplated by the Rules of the Registered Societies, the Union of India have the pervasive control over its functions, it is an instrumentality and agency of the Union Government and therefore it is a State within the meaning of Article 12 of the Constitution.
He placed reliance on decisions of this Court in Ramana Dayaram Shetty vs International Airport Authority of India & Ors., ; ; P. K. Ramachandra Lyer & Ors.
vs Union Of India & Ors.
, ; ; B.S. Minhas vs Indian Statistical Institute & Ors., ; ; Bihar State Harijan Kalyan Parishad vs Union of India & Ors., ; and Surya Narain Yadav & Ors.
vs Bihar State Electricity Board & Ors., ; WE do not think it necessary to consider this question in detail as in our opinion given on an assumption that the Grih Kalyan Kendra is an instrumentality of a State within the meaning of Article 12 of the Constitution and the petitioners are entitled to enforce their fundamental rights against it, it is difficult to uphold this contention that the respondents have violated any of the fundamental rights of the petitioners.
We accordingly proceed on the assumption that the Grih Kalyan kendra is a State for the purposes of Chapter IV of the Constitution and consequently this petition under Article 32 of the Constitution is maintainable and the petitioners are entitled to invoke the jurisdiction of the Court for the enforcement of their fundamental right founded on the principle of equal pay for equal work.
Equal pay for equal work is not expressly declared by the Constitution as a fundamental right but in view of the Directive Principles of State Policy as contained in Article 39(d) of the Constitution "Equal pay for equal work" has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution.
Equal pay for equal 21 work and providing security for service by regularising causal employment within a reasonable period has been accepted by this Court as a constitutional goal to our socialistic pattern.
It has ceased to be a judge made law as it is the part of the constitutional philosophy which ensures a welfare socialistic pattern of a State providing equal opportunity to all and equal pay for equal work for similarly placed employees of the State.
This Court has zealously enforced the fundamental right to equal pay for equal work in effectuating the constitutional goal of equality and social justice in a number of decisions.
See: Randhir Singh vs Union of Ind, ; ; Daily Rated Casual Labour Employed under P & T Department vs Union of India, ; Dhirendra Chamoli V. State of U.P., ; Surinder Singh vs Engineer in Chief CPWD, ; R.D. Gupta vs Lt.
Governor Delhi Administration, ; Bhagwan Dass vs State of Haryana, [1987] 4 SCC 634; Jaipal vs State of Haryana, [1988] 3 SCC 354 and Dharwad District P.W.D. Literate Daily Wage Employees Association & Ors.
vs State of Karnataka & Ors.
, ; Therefore, the principle of equal pay for equal work even in an establishment which is an instrumentality of a State is applicable to its full vigour.
The question then arises whether the respondents have practised discrimination in denying the employees of the kendra pay which the Union of India has been paying to other similarly placed employees doing the same or similar work.
This question is of primary importance which requires investigation of facts.
Unless, it is demonstrated that the employees of the Grih Kalyan Kendra are discriminated in matters relating to pay and other emoluments with the other similarly placed employees, the principle of equal pay for equal work cannot be applied.
While considering this question, it is not necessary to find out similarity by mathematical formula but there must be a reasonable similarity in the nature of work, performance of duties, the qualification and the quality of work performed by them.
It is permissible to have classification in services based on hierarchy of posts, pay scale, value of work and responsibility and experience.
The classification must, however, have a reasonable relation to the object sought to be achieved.
In Federation of All India Customs and Central Excise Stenographers vs Union of India, ; Sabyasachi Mukharji, J. (as he then was) observed: "There may be qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities make a difference.
One cannot deny that 22 often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service.
So long as such value judgment is made bona fide, reasonable or an intelligible criteria which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination.
It is important to emphasise that equal pay for equal work if a concomitant of Article 14 of the Constitution.
But it follows naturally that equal pay for unequal work will be a negation of that right.
" Elaborating the aforesaid observation the learned Judge further observed thus: "The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less it varies from nature and culture of employment.
The problem about equal pay cannot always be translated into a mathematical formula.
If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact.
" The petitioners have referred to the scale of pay paid to the similar employees of NDMC and Delhi Development Authority under the Delhi Administration for the various employees to demonstrate that the employees of the Kendra are being discriminated as they are paid lower amount of salary although they perform the same duties and functions as performed by corresponding employees holding corresponding posts under the NDMC and Delhi Administration.
The chart as set out in the petition is as under: _________________________________________________________________ section No. Designation GKK Salaries per month NDMC DDA/C.Govt.
____________________________________________________________________ 1.
Incharge Creche 788 1139 1380 2.
Creche Attendants 758 1139 1139 3.
Creche Ayahs 592 792 792 4.
Craft Teachers 786 1260 1444 5.
Nursery Teachers 712 1260 1260 6.
Nursery Ayahs 430 792 792 7.
Office Incharge of Crech Centre etc. 1140 8.
Office Asstt./Typist 880 1140 9.
i) Cutters (Tailors) 1140 ii) Stitchers (Checker)870 1140 iii) Drivers 565 1140 iv) Peons 1140 v) Chowkidars 750 792 10.
Sweepers 225 In 1984 the employees filed Writ Petition No. 13924 of 1984 in this Court claiming relief for the payment of wages on the principle of equal pay for equal work, seeking parity with the employees of NDMC and other Departments of Delhi Administration and Union of India.
Since, the matter involved investigations of facts, this Court with a view to find out as to which other employees similarly situated were paid more than the employees working in the Kendra and also to ascertain whether the principle of equal pay for equal work was being violated by the kendra, on the suggestion of the parties referred the matter to Former Chief Justice Shri Y.V. Chandrachud, for his report and recommendation.
The Court requested the Former Chief Justice make recommendations taking into account the following matters: "1.
Whether other similarly situated employees (engaged in similar comparable work, putting in comparable hours of work, in a comparable employment) are paid higher pay and if so what should be the entitlement of the complaining employees in order not to violate the equal pay for equal work principle; 2.
If there is no other comparable employment, whether the remuneration of the complaining employees deserves 24 to be revised on the ground that their remuneration is unconscionable or unfair and if so to what extent.
The organisation is not disabled form continuing its benign motivity and even extending it.
" Pursuant to the directions of the Court, the parties including the petitioners appeared before the Former Chief Justice.
After hearing the parties and considering the entire material placed before him, the Former Chief Justice submitted and elaborate report to the Court making comprehensive suggestions.
The respondents to the writ petition agreed to implement the recommendations made by the Former Chief Justice.
Thereupon the writ petition was disposed of by an order dated 6 th May 1988 stating that the employees of the Kendra are entitled to the benefits recommended in the Report of the Former Chief Justice.
In order to appreciate the controversy, we consider it necessary to refer to the concluding part of the Report which contains the recommendations, it is as follows: "Having given a careful thought to these unusual considerations, I am of the opinion that until such time as the Government formulates a new scheme for giving an orderly shape to the Kendra so that, by the application of a rational policy the remuneration of the Kendra employees could be fixed on a fair basis, an ad hoc method of stepping up their meagre honorarium should be adopted, linked to the length of service put in by the employees.
No other test seems feasible since, especially, the Kendra employees are not prohibited from taking any other employment, they are not recruited through an open competition, there is no age bar for their recruitment or retirement and since, being dependents of Government servants, they are eligible in that capacity for receiving other benefits like free medical aid and leave travel concessions.
In view of these circumstances, to place the Kendra employees on par with other employees would be treating unequals as equals which would conceivably draw a constitutional challenge.
For the foregoing reasons, I recommend that the employees of the Kendra belonging to category (b) described earlier in this Report should be paid a fixed monthly honorarium according to the following scale: 25 1.
Employees who have put in a service of 20 years of more should be paid 100% (one hundred per cent ) more of the honorarium which is paid to them at present.
Employees who have put in a service of 15 to 20 years should be paid 90% (ninety per cent) more of the honorarium which is paid to them at present.
Employees who have put in a service of 10 to 15 years should be paid 80% (eighty per cent) more of the honorarium which is paid to them at present.
Employees who have put in a service of 5 to 10 years should be paid 70% (seventy per cent) more of the honorarium which is paid to them at present.
Employees who have put in a service of 1 to 5 years should be paid 60% (sixty per cent) more of the honoratium which is paid to them at present.
These recommendation should operate retrospectively with effect from 1st August 1986, being the date on which the Supreme Court passed its order referring the matter to me.
The delay in making these recommendations is not due to any default on the part of the employees.
The employees of the Kendra of the (b) category should be paid arrears of honorarium upon the revised basis, before 31st October, 1987.
" The Court accepted the Report of the Former Chief Justice and disposed of the petition on a statement made on behalf of the respondents that they would implement the recommendations made in the Report of the Former Chief Justice.
There is no dispute that the recommendations made by the Former Chief Justice have been implemented and the employees of the Kendra are being paid remuneration accordingly.
The Former Chief Justice 's recommendation for ad hoc method of stepping up of honorarium until such time as the Government formulates a new scheme for giving orderly shape of the Kendra has been accepted by the respondents and a Sub Committee has been set up by the Grih Kalyan Kendra Board to review the organisational and operational arrangements in the Kendra at the headquarters and in the cities and to suggest measures for the improvement of its functioning.
The Committee has been directed 26 with reference to the original objectives of Kendra of imparting skills to a steady stream of dependents of Government employees and to make suggestions for making further improvements.
The Committee has not yet submitted its report.
We hope and trust that the Committee will submit its report and the Girh Kalyan Kendra will take steps to improve the functioning of the Kendras including the remuneration of its employees.
In the instant writ petition the petitioners have raised precisely the same question as raised in the earlier Writ Petition 13924 of 1984.
Their grievance of discrimination in matters relating to payment of scale of pay and other emoluments was examined in the earlier writ petition and the Former Chief Justice held that there was no employment comparable to the employment held under the Grih Kalyan Kendra and therefore they could not seek parity with other employees working under NDMC or the Delhi Administration or Union of India.
We consider it necessary to refer to the relevant part of the Report of the Former Chief Justice, which is as under: "The first consideration which I am required by the Supreme Court to take into account is "whether other similarly situated employees (engaged in similar comparable work, putting in comparable hours of work, in a comparable employment) are paid a higher pay and as to what should be the entitlement of the complaining employees in order not to violate the equal pay for equal work principle.
" The facts and the statistical data set out above will show that the employment in the Kendra is unique in character, that is to say, it is not comparable with any other employment.
Its motivation and genesis coupled with the absence of rules governing service conditions elude even a broad comparison between the employees of the Kendra and the employees of other organisations holding somewhat similar post, that is, posts bearing similar duties and designation.
It is difficult to conceive of any other service which one can enter at any age, regardless of educational qualifications, and from which one can retire when one chooses.
It is something like "come if you like, go when you please".
Since there is no other employment which can bear a reasonable comparison with employment in the service of the Kendra, it is difficult to perceive employees similarly situated as those in the service of the Kendra.
27 Therefore, the fact that those other employees may be drawing higher pay will not justify the conclusion that the employees of the Kendra of Category(b), with whom alone we are concerned are denied the benefit of the principle "Equal pay for equal work".
It is trite that the concept of equality implies and requires equal treatment for those who are situated equally.
One cannot draw comparisons between unequals.
If the facts of a given case fail to establish that persons who are aggrieved are not situated equally with others, the benefits available to those others cannot ipso facto be given to the former though, of course, the question as to whether persons are situated equally has to be determined by the application of broad and reasonable tests and not by the application of a mathematical formula of exactitude.
Try howsoever as one may be applying broad and reasonable criteria, the conclusion is inescapable that there are no other employment comparable to the employment in the (b) category of the Kendra, that means that the aggrieved employees are not situated similarly as any others.
This then in my answer to the first question referred by the Supreme Court for my consideration.
Putting it briefly, there being no other Government or semi Government employees who can be regarded, even broadly, as being situated similarly as the employees of the Kendra with whom we are concerned, the principle of equal pay for equal work cannot be said to be violated by the payment of mere honorarium to these employees.
" The above findings recorded by the Former Chief Justice are findings of facts founded on the material placed before him by the parties.
These findings were accepted by this Court and the Writ petition was accordingly disposed of by an order dated 6th May 1988.
Now it is not open to the petitioner to reopen the same question by means of the present writ petition.
In the Supplementary affidavit filed on behalf of the petitioner an attempt was made to dispute the findings recorded by the Former Chief Justice but in fairness, Shri Govind Mukhoty made a candid statement before us during the course of the arguments that the findings of the Former Chief Justice are not disputed.
The findings recorded by the Former Chief Justice clearly show that there has been no discrimination as the petitioners are not being discriminated from those who are situated equally.
The petitioners ' claim 28 for the benefit of equal pay for equal work, therefore must fail.
Since the petitioner 's claim for parity in pay with regard to the employees working in the New Delhi Municipal Committee and other Departments of the Delhi Administration and Union of India has failed, their claim for the issue of direction to the respondents to provide for the pension, gratuity and provident fund for the employees of the Grih Kalyan Kendra must also fail.
In the result the petition fails and is accordingly dismissed.
There will be no order as to costs.
Y.Lal Petition dismissed.
|
Grih Kalyan Kendra is a Society registered under the Societies Registration Act 1960.
It is a welfare organization working under the aegis of the Department of Personnel and Administrative Reforms, Ministry of Home Affairs.
Its object is to establish Kendras to help needy Government servants especially those belonging to the lower income group by providing to their dependents opportunity of gainful work and training during their leisure time so that the dependents of such Government servants may be able to supplement to the meagre income of the family and to acquire skill and experience for obtaining employment elsewhere.
In furtherance of this object, the kendra has set up nursery centres, craft centres, and creches etc.
In Delhi and other cities where the work of imparting necessary training is carried on.
The management of the Kalayan Kendras vests in the Board which consists of officers of the Department of Personnel and in order to augment its resources the Ministry gives grant to the kendras.
The terms and conditions or tenure of service of its employees have not been regulated by any Rules framed by the kendra.
The staff of the Kendras fall in two categories viz. (i) regular staff taken on deputation from other central government offices who draw their salaries in regular scales of pay with the deputation and other allowances as admissible to the central government employees and (ii) employees employed at the various centres of the kendra on ad hoc basis, some of whom have been working an fixed salary called honorarium while others are working on the piece rate wages, without any gratuity or pension or Provident fund.
The Workers ' Union of the Kendra has filed this writ petition for a declaration that the kendra wherein the workers are employed is a 'State ' within the meaning of Article 12 of the Constitution and such it is prayed by them that a writ of mandamus be issued directing the respondents to pay regular pay scale on par with other employees 16 performing similar work under the Union of India, New Delhi Municipal Committee and other Departments of the Delhi Administration, as according to them wages paid to them are low as compared to the employees performing identical duties in the said Departments.
Their contention is that the Kendra being a 'State ', the respodents are under constitutional obligation to pay them higher scale of pay prescribed for the Government Departments, on the principle "equal pay for equal work".
They have raised claim to pension, gratuity and provident fund etc.
The respondents contest their claim on the plea that the employees working in the kendra are not regular employees and the duties performed by them are not comparable to any of the employees working under NDMC or any other DEPARTMENT OF THE Delhi Administration or Union of India, the Status of the Kendra being unique.
Dismissing the writ petition the Court, HELD: There being no other Government or semi Government employees who can be regarded, even broadly, as being situated similarly as the employees of the Kendra, the principle of equal pay for equal work cannot be said to be violated by the payment of mere honorarium to these employees.
[27E] The findings recorded by the former Chief Justice to whom the matter was referred earlier clearly shows that there has been no discrimination as the petitioners are not being discriminated from those who are situated equally.
The petitioner 's claim for the benefit of equal pay for equal work, therefore must fail.
Their claim for the issue of direction to the respondents to provide for the pension, gratuity and provident fund for the employees of the Grih Kalyan must also fail.
[27H; 28A B] Ramana Dayaram Shetty vs International Airport Authority of India and ors.
; , ; P.K. Ramachandra lyer & Ors.
vs Union of India and Ors.
, ; ; B.S. Minhas vs
Indian Statistical Institute and Ors., ; ; Bihar State Harijan Kalyan Parishad vs Union of india and ors.
; , ; Surya Narain Yadav & Ors.
vs Bihar State Electricity Board and Others, ; ; Randhir Singh vs Union of India, ; ; Daily Rated Casual Labour Employed under P Dhirendra Chamoli vs State of U.P.,[1986] 1 SCC 637, Engineer in Chief, CPWD R.D. Gupta vs Lt. Governor, Delhi Administration, ; ; Bhagwan Dass vs
State of 17 Haryana, [1987] 4 SCC 634; Jaipal vs State of Haryana, [1988] 3 SCC 354; Dharwad District P.W.D. Literate Daily Wage Employees Association and Ors.
vs State of karnataka and Others; , ; Federation Of all India Customs and Central Excise Stenographers vs Union of India, [19890 3 SCC 1, referred to.
|
etition (C) No. 381 of 1998.
8 (Under Article 32 of the Constitution of India).
S.K. Sinha for the Petitioner.
D. Goburdhan, Ms. A. Subhashini, K.K. Lahiri, Ms. Lira Goswami and D.N. Misra for the Respondents.
The Judgement of the Court was delivered by SINGH,J. We heard the arguments in detail on 13.12.
1990 and dismissed the petition with costs amounting to Rs. 5,000 with the direction that the reasons shall be delivered later on.
We are, accordingly, delivering our reasons.
This petition is under Article 32 of the Constitution by Subhash Kumar for the issue of a writ or direction directing the director of Collieries, West Bokaro Collieries at Ghatotand, District Hazaribagh in the State of Bihar and the Tata from & Steel Co. Ltd. to stop forthwith discharge of slurry/sludge from its washeries at Ghatotand in the District of Hazaribagh into Bokaro river.
This petition is by way of public interest litigation for preventing the pollution of the Bokaro river water from the sludge/slurry discharged form the washeries of the Tata Iron & Steel Co. Ltd. The petitioner has alleged that the Parliament has enacted the (hereinafter referred to as `the Act ') providing for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment of Board for the prevention and control of water pollution.
Under the provisions of the Act the State Pollution Control Board constituted to carry out functions prescribed under Section 17 of the Act which among other things provide that the Board shall inspect sewage or trade effluents and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data set up for the treatment of water and to lay down standards to be complied with by the persons while causing discharge of sewage or sullage.
Section 24 of the Act provides that no person shall knowingly cause or permit any poisonous, noxious or polluting matter to enter into any stream or well, which may lead to a substantial aggravation of pollution.
The petitioner has asserted that Tata Iron and Steel Co respondent No.5 carries on mining operation in coal mines/washeries in the town of Jamshedpur.
These coal mines and collieries are known as West Bokaro Collieries and the Collieries have two coal washeries where the coal after its extraction from the mines is brought and broken into graded pieces and there 9 after it is processed for the purpose of reducing its ash contents.
A chemical process is carried out which is known as `froth floatation process '.
Under this process the graded coal is mixed with diesel oil, pine oil and many other chemical ingredients and thereafter it is washed with the lacs of gallons of water.
The end water is washed coal with reduced quantity of ash content fit for high graded metallurgical process for the purposes of manufacture of steel.
In the process of washing large quantity of water is discharged through pipes which carry the discharged water to storage ponds constructed for the purpose of retaining the slurry.
Along with the discharged water, small particles of coal are carried away to the pond where the coal particles settle down on the surface of the pond, and the same is collected after the pond is de watered.
The coal particles which are carried away by the water is called the slurry which is ash free, it contains fine quality of coal which is used as fuel.
The petitioner has alleged that the surplus waste in the form of sludge/slurry is discharged as an effluent from the washeries into the Bokaro river which gets deposited in the bed of the river and it also gets settled on land including the petitioner 's land bearing Plot No.170.
He was further alleged that the sludge or slurry which gets deposited on the agricultural land, is absorbed by the land leaving on the top a fine carbonaceous product or film on the soil, which adversely affects the fertility of the land.
The petitioner has further alleged that the effluent in the shape of slurry is flown into the Bokaro river which is carried out by the river water to the distant places polluting the river water as a result of which the river water is not fit for drinking purposes nor it is fit for irrigation purposes.
The continuous discharge of slurry in heavy quantity by the Tata Iron & Steel Co. from its washeries posing risks to the health of people living in the surrounding areas and as a result of such discharge the problem of pure drinking water has became acute.
The petitioner has asserted that inspite of several representations, the State of Bihar and State Pollution Control Board have failed to take any action against the Company instead they have permitted the pollution of the river water.
He has further averred that the State of Bihar instead of taking any action against the Company has been granting leases on payment of royalty to various persons for the collection of slurry.
He has, accordingly, claimed relief for issue of direction directing the respondents which include the State of Bihar, the Bihar Pollution Control Board, Union of India and Tata Iron & Steel Co. to take immediate steps prohibiting the pollution of Bokaro river water from the discharge of slurry into the Bokaro river and to take further action under provisions of the Act against the Tata Iron & Steel Co. 10 The respondents have contested the petition and counter affidavits have been filed on behalf of the respondent Nos. 2, 4 and 5 State of Bihar, State Pollution Board, Directors of Collieries and Tata Iron & Steel Co. Ltd. In the counter affidavits filed on behalf of the respondents, the petitioner 's main allegation that the sludge/slurry is being discharged into the river Bokaro causing pollution to the water and the land and that the Bihar State Pollution Board has not taken steps to prevent the same is denied.
In the counter affidavit filed on behalf of the Bihar State Pollution Board it is asserted that the Tata Iron & Steel Co. operates open case and underground mining.
The Company in accordance to Sections 25 and 26 of the Water (Prevention Control of Pollution) Act, 1974 applied for sanction from the Board of discharge their effluent from their outlets.
The Board before granting sanction analysed their effluent which was being watched constantly and monitored to see that the discharges does not affect the water quality of the Bokaro river adversely.
In order to prevent the pollution the Board issued direction to the Director of the Collieries to take effective steps for improving the quality of the effluent going into the Bokaro river.
The State Pollution Board imposed conditions requiring the Company to construct two settling tanks for settlement of solids and rewashing the same.
The Board directed for the regular samples being taken and tested for suspended solids and for the communication of the results of the tests to the Board each month.
The State Board has asserted that the Company has constructed four ponds ensuring more storing capacity of effluent.
The Pollution Board has been monitoring the effluent.
It is further stated that on the receipt of the notice of the instant writ petition the Board carried out an inspection of the settling tanks regarding the treatment of the effluent from the washeries on 20th June, 1988.
On inspection it was found that all the four settling tanks had already been completed and work for further strengthening of the embankment of the tanks was in progress, and there was no discharge of effluent from the washeries into river Bokaro except that there was negligible seepage from the embankment.
It is further stated that the Board considered all the aspects and for further improvement it directed the management of the collieries for removal of the settle slurry from the tanks.
The Board has directed that the washeries shall perform desludging of the settling tanks at regular intervals to achieve the proper required retention time for the separation of solids and to achieve discharge of effluents within the standards prescribed by the Board.
It is further asserted that at present there is no discharge from any of the tanks of the Bokaro river and there is no question of pollution of the river water of affecting the fertility of land.
In their affidavits files on behalf of the respondent 11 Nos. 4 and 5, they have also denied the allegations made in the petition.
They have asserted that the effective steps have been taken to prevent the flow of the water discharge from the washeries into the river Bokaro.
it is stated that infact river Bokaro remains dry during 9 months in a year and the question of pollution of water by discharge of slurry into the river does not arise.
However, the management of the washeries have constructed from different ponds to store the slurry.
The slurry which settles in the pounds is collected for sale.
The slurry contains highly carbonaceous materials and it is considered very valuable for the purpose of fuel as the ash contents are almost nil in the coal particles found in the slurry.
Since, it has high market value, the Company would not like it to go in the river water.
The Company has taken effective steps to ascertain that no slurry escapes from its ponds at the slurry is highly valuable.
The Company has been following the directions issued by the State Pollution Control Board constituted under the 1974 Act.
On the facts as appearing from the pleadings and the specific averments contained in the counter affidavit filed on behalf of the State Pollution Control Board of Bihar, prima facie we do not find any good reason to accept the petitioner 's allegation that the water of the river Bokaro is being polluted by the discharged of sludge or slurry into it from the washeries of the respondent company.
On the other hand we find that the State Pollution Control Board has taken effective steps to check the pollution.
We do not consider it necessary to delve into greater detail as the present petition does not appear to have been filed in public interest instead the petition has been made by the petitioner in his own interest.
On a perusal of the counter affidavit filed on behalf of the respondent Nos. 4 and 5 it appears that the petitioner has been purchasing slurry from the respondent Nos. 4 and 5 for the last several years.
With the passage of time he wanted more and more slurry, but the respondent company refused to accept his request.
The petitioner is an influential businessman, he had obtained a licence for coal trading, he tried to put pressure through various sources on the respondent company for supplying him more quantity of slurry but when the Company refused to succumb to the pressure, he started harassing the Company.
He removed the Company 's slurry in an unauthorised manner for which a Criminal Case No., 173 of 1987 under Sections 379 and 411 of the Indian Penal Code read with Section 7 of the Essential Commodities Act was registered against the petitioner and Pradip Kumar his brother at Police Station Mandu, which is pending before 12 the Sub Judge, Hazaribagh.
One Shri Jugal Kishore Jayaswal also filed a criminal complaint under Section 379 and 411 of the IPC against the petitioner and his brother Pradip Kumar in the Court of Judicial Magistrate, First Class, Hazaribagh, which is also pending before the Court of Judicial Magistrate, 2nd Class Hazaribagh.
The petitioner initiated several proceedings before the High Court of Patna under Article 226 of the constitution for permitting him to collect slurry from the Raiyati land.
These petitions were dismissed on the ground of existence of dispute relating to the title of the land.
The petitioner filed a writ petition C.W.J.C. No. 887 of 199o in the High Court of Patna for taking action against the Deputy Commissioner, Hazaribagh for implementing the Full Bench judgment of the Patna High Court in Kundori Labours Cooperative Society Ltd. & etc.
vs State of Bihar & Ors.
, AIR 1986 Patna 242 wherein it was held that the slurry was neither coal nor mineral instead it was an industrial waste of coal mine, not subject to the provisions of the Mines and Mineral (Regulation and Development) Act, 1957.
Consequently the collection of slurry which escaped from the washeries could be settled by the State Government with any person without obtaining the sanction of the Central Government.
The petitioner has been contending before the High Court that the slurry which was discharged from washeries did not belong to the Company and he was entitled to collect the same.
Since the respondent company prevented the petitioner from collecting slurry from its land and as it further refused to sell any additional quantity of slurry to him, he entertained grudge against the respondent company.
In order to feed fat his personal grudge he has taken several proceedings against the respondent company including the present proceedings.
These facts are quite apparent from the pleadings of the parties and the documents placed before the Court.
Infact,there is intrinsic evidence in the petition itself that the primary purpose of filling this petition is not to serve any public interest instead it is in self interest as would be clear from the prayer made by the petitioner in the interim stay application.
The petitioner claim interim relief from this Court permitting him to arrest/collect sludge/slurry flowing out of the washeries of the respondent Nos. 4 and 5 and with a direction to the State of Bihar, its officers and other authorities for not preventing him from collecting the sludge/slurry and transporting the same.
The prayer for the interim relief made by the petitioner clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business.
As already state a Full Bench of the Patna High Court held that the slurry was not coal and the provisions of the Mines and Mineral (Regulation and Development) Act, 1957 were not applicable, the State Government was tree to settle the same 13 and the Tata Steel & Iron Co. had no right to collect the slurry which escaped from its washeries.
The respondent company filed an appeal before this Court.
During the pendency of the aforesaid appeal, the petitioner filed the present petition.
The appeal preferred by the Tata Iron & Steel Co. Ltd. and Bharat Coking Coal Ltd. was allowed by this Court and judgment of Patna High Court was set aside.
The judgment of this Court is reported in Judgments today Vol. 3 wherein it has been held that the slurry/coal deposited on any and continues to be coal and the State Government has no authority in law to deal with the same and the slurry deposited on the Company 's land belongs to the Company and no other person had authority to collect the same.
Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court.
It provides for an extraordinary procedure to safeguard the Fundamental Rights of a citizen.
Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.
If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art, 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.
A petition under article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists.
But recourse to preceeding under article 32 of the Constitution should be taken by a person genuinely interested in the protection of society on behalf of the community.
Public interest litigation cannot be invoked by a person or body or person to satisfy his or its personal grudge and enmity.
if such petitions under Article 32, are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioner from this Court.
Personal interest cannot be enforced through the process of this Court under article 32 of the Constitution in the garb of a public interest litigation.
Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law.
A person invoking the jurisdiction of this Court under article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity.
It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb 14 of the public interest litigation see Bandhua Mukti Morcha vs Union of India, ; ; Pandey vs State of West Bengal, ; at 331; Ramsharan Autyanuprasi & Anr. vs Union of India & Ors., [1989] Suppl.
1 SCC 251 and Chhetriya Pardushan Mukti Sangharsh Samiti vs State of U.P. & Ors., [1990] 4 SCC 449.
In view of the above discussion we are of the opinion that this petition has been filed not in any public interest but for the petitioner 's personal interest and for these reasons we dismissed the same and directed that the petitioner shall pay Rs. 5,000 as costs.
These costs are to be paid to the respondent Nos. 3,4 & 5.
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The petitioner filed a writ petition in this court by way of public interest litigation alleging that the respondents, West Bokaro Collieries and Tata Iron and Steel Company (TISCO) were polluting the river Bokaro by discharging surplus waste in the form of sludge/slurry as effluent from their washeries into river making the river water unfit for drinking and irrigation purposes thereby causing risk to the health of the people; the State of Bihar and the State Pollution Control Board have failed to take appropriate steps for prevention of the pollution and instead the State of Bihar has granted leases on payment of royalty to various persons for collection of slurry.
Accordingly the petitioner prayed for directions to the respondents to take immediate steps prohibiting the pollution of the river and to take legal action against TISCO under the .
The petitioner also claimed interim relief from this Court that he should be permitted to collect sludge/slurry flowing out of washeries of the respondents.
6 The respondents contested the petition denying the petitioner 's allegations.
Bihar State Pollution Board asserted that directions have been issued to the Bokaro Collieries to take effective steps for improving the quality of the effluent going into the river Bokaro and that the TISCO Company has been granted permission to discharge their effluents from their outlets in accordance with sections 25 and 26 of the 1974 Act.
On behalf of TISCO and the Bokaro Collieries it was contended that all effective steps have been taken to prevent the pollution and they have complied with the instructions of the State Pollution Board.
By an order dated 13.12.1990, this Court dismissed the writ petition with costs.
Giving reasons for dismissal of the petition, this Court, HELD: 1.
Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court.
It provides for an extra ordinary remedy to safeguard the fundamental rights of a citizen.
Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.
If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.
A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists.
But recourse to proceeding under Article 32 of the Constitution should be taken by person genuinely interested in the protection of society on behalf of the community.
Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity.
If such petitions under Article 32 are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court.
Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation.
Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law.
A person invoking the jurisdiction of this Curt under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity.
It is duty of this Court to 7 discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation.
[13C H; 14A] Bandhua Mukti Morcha vs Union of India, ; ; Sachindanand Pandey vs State of West Begal, ; ; Ramsharan Autyanuprasi & Anr.
vs Union of India & Ors.
, [1989] Suppl.
1 SCC 251; Chetriya Pardushan Mukti Sangharsh Samiti vs State of U.P. & Ors., [1990] 4 SCC 449, referred to. 2.
The present petition is not filed in public interest instead the petition has been made by the petitioner in his own interest.
Infact there is intrinsic evidence in the petition itself that the primary purpose of filing this petition is not to serve any public interest instead it is in self interest.
The petitioner has been purchasing slurry from the respondents for the last several years.
With the passage of time he wanted more and more slurry but the Company refused to accept his request.
He removed the Company 's slurry in an unauthorised manner for which criminal cases are pending against him and his brother.
Since the respondent company refused to sell additional slurry he entertained a grudge against the company and in order to feed fat his personal grudge he resorted to several proceedings against the company including the present one.
The prayer for the interim relief made by the petitioner i.e. permitting him to arrest/collect sludge/slurry flowing out of the washeries of the respondents with a direction to the State of Bihar, its officers and other authorities for not preventing him from collecting the sludge/slurry and transporting the same also collecting the sludge/slurry and transporting the same clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business.
Therefore, there is no good reason to accept the petitioner 's allegation that the water of the river Bokaro is being polluted by the discharge of sludge or slurry into it form the washeries of the respondent company.
On the other hand it is evident from records that the State Pollution Control Board has taken effective steps to check the pollution.
[14B;12F G] Kundori Labours Cooperative Society Ltd. & etc.
vs State of Bihar & Ors.
, AIR 1986 Patna 242; Bharat Cokin Coal Ltd. vs State of Bihar & Ors. ; Judgments Today, vol.
3, , referred to.
|
utory Application No. 1 of 1989.
IN W.P. No. 16093 of 1984 etc.
(Under Article 32 of the Constitution of India).
S.M. Jain, S.K. Jain, Ms. Pratibha Jain and Pradeep Agarwal for the petitioner.
Arun Jaitly, Additional Solicitor General, Kailash Vasdev and Ms. A. Subhashini for the Respondent.
The following order of the Court was delivered: Petitioner was a member of the Rajasthan Judicial Service and was elevated as a Judge of the Rajasthan High Court on July 1, 1975.
He was transferred to the Delhi High Court from where he retired on July 21, 1984.
A dispute relating to his pension became the subject matter of a writ petition before this Court and was disposed of on April 9, 1985 This Court fixed his pension at Rs. 21,500 per annum.
In the meantime, certain changes in the High Court Judges (Conditions of Service) Act,1954, were brought about, firstly, by Central Act 38/86 and again by Central Act 20/88.
Petitioner applied to this Court in Civil Miscellaneous Petition No. 18044/88 asking for benefits under the Amending Act.
This Court by its decision on August 18, 1988, refixed petitioner 's pension at Rs. 41,600 per annum with effect from January 1, 1986, and at Rs. 46,100 per annum with effect from November 1,1986, keeping the two amendments referred to above in view ; In paragraph 19 of this Court 's order, it was stated: "We refrain from expressing any opinion as to the effect of lifting of the ceiling on the special additional pension at Rs. 8,000 per annum placed by clause (b) of paragraph 2 of Part III of the First Schedule.
The question really does not arise for our consideration at the moment and is left open.
" 100 The petitioner has now applied to this Court challenging the ceiling on additional pension appearing in clause (b) of paragraph 2 of Part III of the first Schedule to the of 1954.
The First Schedule Deals with pension of Judges.
Judges in High Court are recruited from three sources: (a) from the Bar; (b) Members belonging to the former Indian Civil Service; and (c) Officers of the State Judicial Service.
In this case we are concerned with as petitioner had been elevated as a Judge of High Court from the Rajasthan State Judicial Service.
In respect of such a Judge the pension payable is prescribed to be: "(a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) a special additional pension or Rs.1,600 per annum in respect of each completed year of service for pension,but in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rule of his service exceed Rs.8,000 per annum.
Provided that the pension under clause (a) and additional pension under clause (b) together shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs. 48,000 per annum in case of any other Judge.
" Since this Court had fixed the pension at Rs. 46,100 and petitioner 's claim for being put at par with other Judges by fixing his pension at Rs. 48,000 per annum had not been accepted, petitioner has approached this Court challenging the ceiling of Rs. 8,000.
According to the petitioner, he had put in nine years of completed service as a Judge and on the basis of the provision for special additional pension of Rs. 1,600 per annum in respect of each completed year of service for pension he was entitled to Rs.14,400 but the limit in the proviso would have the effect of fixing ceiling at Rs. 48,000 per annum.
There was no justification to introduce a further ceiling of Rs. 8,000 per annum irrespective of the years of completed service rendered and allow a discrimination to operate.
Once the proviso has a limit which meets the purpose there is no basis for the further limit of Rs. 8,000 as contained in paragraph (2) above.
The counter affidavit filed on behalf of the Ministry of Law and Justice sought to justify the limit by referring to cases of Central Civil Service Officers retiring as Secretaries to Government where full credit was not being given for the entire period of service rendered and aceiling was fixed.
Such a ceiling actually is fixed in respect of all the three situations covered by the First Schedule.
A Member of the Bar with 14 years of completed service out of which six years are served as a Chief Justice or as a Judge of the Supreme Court gets the maximum pension of Rs. 54,000 and in the event of his retirement without becoming Chief Justice or a Judge of the Supreme Court, his pension entitlement is Rs. 48,000 per annum.
Similar is the provision relating to the members of the Indian Civil Service who were earlier elevated as Judges.
It is the contention of the petitioner that once a ceiling limit was fixed as contained in the proviso of the Third Part, there was no further justification for the Paragraph 2(b) ceiling.
We find full force in the submission.
The reasons which weighed with this Court on the earlier occasion for enhancing the petitioner 's pension fully apply to the present aspect.
The ceiling of Rs. 8,000, therefore, is not necessary to be imposed and if that is applied, a situation giving rise to the application of article 14 of the Constitution does arise.
In fact, the presence of the proviso clearly brings out the intention that no ******** sought to be made between Judges recruited from the different sources for the matter of the ceiling on pension.
We, therefore, modify the order of this Court fixing petitioner 's pension at Rs. 46,100 and require his pension to be fixed at Rs. 48,000 per annum by holding that the ceiling in paragraph 2(b) of Part III of the First Schedule is unsustainable under article 14 of the Constitution and would not be operative.
We direct that petitioner 's pension from November 1, 1986, shall be fixed at Rs. 48,000 a year.
We would make it clear that as we have held that paragraph 2(b) is ultra vires, it will follow that all cases to which the present situation applied should be revised by the Union of India without requiring representations or applications from the retired Judges concerned.
There would be no order as to costs.
V.P.R. Petition allowed.
|
Petitioner was a member of the state Judicial Service and was elevated as a Judge of the High Court on 1.7.1975, and was later transferred to another High Court where he retire on 21.7.1984.
A dispute relating to pension was disposed of by this Court on 9.4.1985 fixing it at Rs.21,500 per annum.
Meanwhile, the High Court Judges (Conditions of Services) Act,1954 was amended by Central Acts 38/86 and 20/88, and he applied under the said Amending Acts asking for benefits there under, and this Court refixed the petitioner 's pension at Rs.41,600 per annum w.e.f 1.1.1986 and at Rs. 46,100 per annum w.e.f. 1.11.1986.
In an interlocutory petition the petitioner challenged the ceiling on additional pension appearing in clause (h) of paragraph 2 of Part III of the First Schedule to the .
Allowing the petition, this Court, HELD: 1.
There was no justification to introduce a further ceiling of Rs.8,000 per annum irrespective of the years of completed service rendered and allow a discrimination operate.
Once the proviso has a limit which meets the purpose there is no basis for the further limit of Rs 8,000.
[101A} 2.
The ceiling of Rs. 8,000 is not necessary to be imposed and if that is applied, a situation giving rise to the application of Article 14 of the Constitution does arise.
[101E] 3.
Fixing the pension at Rs. 48,000 per annum held that the ceiling in paragraph 2(b) of Part III of the First Schedule is unsustainable under Article 14 of the Constitution and would not be operative.
[101F]
|
: Criminal Appeal No. 37 of 1991.
From the Judgment and Order dated 7.3.
1989 of the Kerala High Court in Crl.
Appeal No. 321 of 1986.
P.S Poti and T.T. Kunhikannan for the Appellants.
T.S Krishnamoorthy lyer and N. Sudhakaran for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
The respondents were found guilty by the trial Court for contravention of para 21 read with para 18 of the Drugs (Prices Control) Order, 1979 (hereinafter referred to as 'the Order") issued under Section 3 of the (hereinafter referred to as 'the Act ') and accordingly convicted under Section 7 of the Act.
Respondent No. 1 firm was sentenced to a fine of Rs.2,000 while respondents 2 and 3 who were the managing partner and pharmacist of the firm were sentenced to three months simple imprisonment.
The High Court of Kerala at Ernakulam (hereinafter referred to as 'the High Court ') allowed their appeal against the con 67 viction and sentence and acquitted all of them.
Hence, this special leave petition against their acquittal.
Leave granted.
The allegation on which the prosecution of the respondents was based is that they collected Rs. 90 in excess of the maximum retail price fixed for the sale of 15 tablets of Largactil of 100 mg each and 60p.
in excess for 100 tablets of Hipnotex of 5 mg each from one Sepastian Joseph, a Nursing Assistant in the Medical College Hospital, Kottayam, on 4.2.1985.
It is alleged that recovery of the amount in excess of the maximum retail price fixed for the sale of these medicines under the drugs (Prices Control) Order, 1979 was a contravention of the provisions contained therein which is punishable under Section 7 of the .
The trial Court rejected the several defences raised by the respondents and found them guilty of contravention of para 18 read with para 21 of the Order which is an offence punishable under Section 7 of the .
The respondents were accordingly convicted and sentenced as aforesaid.
As earlier stated, the respondents ' appeal to the High Court has succeeded and they have all been acquitted.
The High Court has taken th view that on these allegations, contravention of para 18 of the Order is not made out.
The High Court has summarised its conclusion as under: "The upshot of the above discussion is that Largactil and Hipnotex Chlorpromazine and nitrazepam are only bulk drugs and not formulation.
The appellants, none of whom is a manufacturer or distributor, cannot be convicted for contravention of paragraph 18 of the Order.
(The position is seemingly different in the Order of 1987 because paragraph 18 of the Order of 1987 contains inhibition against sale of bulk drugs also).
In the result, I allow this appeal and set aside the conviction and sentence.
The appellants are acquitted and are directed to be set at liberty.
The real question for decision in the present case is the correctness of the construction made by the High Court of the provisions of the 'Order '.
Shri P.S. Poti, learned counsel for the appellants contended that the grievance in this appeal is really to the construction 68 made by the High Court of the provisions of the 'Order ' which is affecting a large number of similar matters are not to the outcome of individual matter before us.
Learned Counsel contended that the appellants are not much interested in assailing the acquittal in the present individual matter, but the correct construction of the provisions of the Order is necessary for future guidance.
In our opinion, it is necessary to examine the provisions of the 'Order. ' and to indicate their correct meaning in view of the general importance thereof.
The Order was made by the Central Government in exercise of the powers conferred by Section 3 of the .
Para 2 of the order contains the definitions, some of which may be referred.
Clause (a) of para 2 defines 'bulk drug ' to mean any substance. . 'which is used as such, or as an ingredient in any formulations '.
'Dealer ' is defined in clause(b) to mean a person carrying on the business of purchase or sale of drugs, whether as a wholesaler or retailer and includes an agent of a dealer. 'Drug ' is defined in clause (d) to include 'bulk drugs and formulations '.
Clause (f) defines 'formulation ' to mean a medicine processed out of, or containing 'one or more bulk drugs or drug '.
Clause (q) defines 'price list ' to mean a price list referred to in this Order.
Clause (r) defines 'retail price ' to mean the retail price of a drug arrived at or fixed in accordance with the provisions of this Order.
The other clauses of Para 2 contain other definitions including the definitions of 'retailer ' and 'wholesaler.
It is not necessary to refer to them in detail.
Para 3 contains the power to fix the maximum sale price of indigenosly manufactured bulk drugs specified in First or Second Schedule of the Order.
Para 19 requires every manufacturer or importer of a formulation to furnish to the dealers, State Drug Controllers and the Government, a price list showing the price at which the formulation is sold to a retailer and every dealer is required to display the price list at a conspicuous part of his business premises.
Part 20 required every manufacturer, importer or distributor of a formulation to display on label of the container the maximum retail price of that formulation.
Paras 18, 21 and 22, the construction of which is in dispute, read as under: "18.
Certain provisions of this Order to apply to formulations not included in Category I, Category II or Category III of Third Schedule.
The provision of this Order, other than those contained in paragraphs 10 to 14 (both inclusive), shall apply, to any formulation not specified in Category I, Category II or Category III of the Third Schedule." 69 :21.
Control of sale prices of formulations specified in Third Schedule.
No retailer shall sell any formulations specified in any of the categories in the Third Schedule to any person at a price exceeding the price specified in the current price list or the price indicated on the label of the container or pack thereof whichever is less plus the local taxes, if any, payable.
Explanation.
For the purposes of this paragraph, "local taxes" include sales tax and octroi actually paid by the retailer under any law in force in a particular area." "22.
Sale of split quantities of formulations.
No dealer shall sell loose quantity of any formulation drawn from a bottle pack of such formulation at a price which exceeds the pro rate price of the formulation plus 5 per cent thereof.
provided that nothing in this behalf shall apply to any formulation compounded at the premises of the dealer.
" The view taken by the High Court is that the two formulations, namely, Largactil and Hipnotex, the sale of which at an excess price is alleged to be the contravention of the Order, not being formulations specified in any of the categories in the Third Schedule to the Order, the prohibition contained in para 21 of the Order has no application.
On this basis, the view taken is that the sale of these two formulations in excess of the retail price fixed for their sale is not a contravention of any provision of the Order to attract the punishment provided under Section 7 of the .
It has also been held by the High Court that none of these two medicines is a formulation as defined in clause (f) of para 2 of the Order but merely a bulk drug, which fact also excludes the application of para 21 of the Order.
It appears that this position was not seriously contested even by the learned public prosecutor in the Courts below.
In our opinion, such a view results from a mis reading of the material provisions of the Order.
The definition of 'bulk drug ' given in clause (a) of para 2 shows that it means any substance 'which is used as such ' or 'as an ingredient in any formulations '.
Thus a bulk drug is one which may be capable of use by itself or as an ingredient in any formulation.
Drug is defined in clause (d) of para 2 to include 'bulk drugs ' and 'formulations '.
Clause 70 (f) then defines `formulation ' to mean any medicine processed out of or containing one or more bulk drugs or drug.
Thus formulation is a medicine which may comprise even of one bulk drug by itself or more than one bulk drug.
The definition of 'formulation ' is thus very wide and includes even one bulk drug where that one bulk drug by itself is treated as a medicine.
It is difficult to uphold the view that the two medicines, namely, Largactil and Hipnotex, do not fall within the definition of 'formulation ' contained in clause (f) of para 2 of the Order.
One of the two difficulties pointed out by the High Court in applying para 21 of the Order to the present case is clearly out of the way.
The only surviving question now is whether para 21 of the Order is rendered inapplicable merely because none of these formulations is specified in any of the categories in the Third Schedule to the Order.
In other words: is the High Court correct in taking the view that notwithstanding the fixation of the maximum retail price of these formulations in accordance with the provisions of the Drugs (Prices Control) Order, 1979, there is no provision made therein to prohibit their sale at an amount in excess of the maximum retail price fixed under the Order to attract the punishment provided in Section 7 of the ? In our opinion, it is not so.
There is no controversy that by an amendment made in 1987 to which we shall refer later, the matter has been placed beyond the scope of any argument.
However, even prior to that amendment, the matter is clear by the express provision contained in para 18 as it existed even then.
Para 18 clearly says that the provisions of this Order 'other than those contained in paragraphs 10 to 14 (both inclusive) ' shall apply to any formulations not specified in Category I, Category II or Category III of the Third Schedule.
It is plain that the provisions of the Order except paragraphs 10 to 14 which have been expressly excluded, are specifically made applicable to formulations which are not specified in the Third Schedule.
It is, therefore, clear that the provisions of para 21 which in terms are meant to control sale prices of formulations specified in the Third Schedule as also the other provisions of the Order which in terms may be of limited application are specifically made applicable to all formulations as defined in the Order except only paragraphs 10 14 which have been expressly excluded.
It is by virtue of para 18 that the prohibition contained in para 21 has been made applicable to formations not specified in the Third Schedule.
This is also the logical view to take.
The contrary view would lead to the conclusion that inspite of the price fixation made for the formula 71 tions not specified in the Third Schedule, there is no prohibition made against its sale for an amount in excess thereof with the result that the price fixation would be an exercise in futility.
The Drugs (Prices Control) Order, 1987, which has replaced the Drugs (Prices Control) Order, 1979, contains paras 18 and 21 differently worded to show clearly that such an argument is now not even available under the 1987 Order.
We are clearly of the opinion that the High Court misconstrued the provisions of the Drugs (Prices Control) Order, 1979, to take the view that none of the aforesaid two medicines, namely, Largactil and Hipnotex are 'formulations ' as defined in Section 2(f) of the Drugs (Prices Control) Order, 1979; and that the sale of these two medicines for an amount in excess of the maximum retail price fixed is not punishable under para 21 read with para 18 of the Order.
The only question now is of the order we should make in this matter.
Shri T.S. Krishnamurthy lyer, learned counsel for the respondents very fairly stated that the construction we have made of the several provisions of the 1979 Order including paras 18 and 21 thereof cannot be seriously disputed.
However, he contended that the respondents had raised several defences none of which has been considered by the High Court since it acquitted the respondents only on the construction it made of these provisions.
He, therefore, argued that setting aside the High Court 's order should not automatically lead to restoration of conviction and sentence made by the trial court since other defences raised by the respondents remain for consideration.
He suggested that in view of the lapse of several years from the date of the alleged offence and the peculiar facts of this case, we may merely set aside the High Court 's order but not restore the conviction and sentence of the respondents.
He pointed out that the customer to whom the medicines are alleged to have been sold at an excess price is himself a member of the nursing staff of a hospital and it is unreasonable to take the view that he would pay Rs. 99 for 15 tablets of Largactil against its retail price of Rs. 9 only, particularly when he had been purchasing these drugs for a long time.
We find merit in the contention of learned counsel for the respondents and we are inclined to adopt the course suggested by him in the light of peculiar facts of this case.
In our opinion, it would be inappropriate after the lapse of several years to send back the case to the High Court for the deciding the remaining defences raised by the respondents which would further prolong conclusion of the trial.
It is also clear that without rejecting the other defences, it is not possible to uphold the conviction and sentence 72 awarded by the trial court.
In such a situation, the course suggested by Shri T.S. Krishnamurthy lyer, particularly in view of the stand taken by Shri P.S. Poti on behalf of the appellants, that the appellants are more keen to know the correct meaning of the provisions of the Order, appears to be the proper course to adopt in the present case.
Consequently, we reject the High Court 's construction of the provisions of the 'Order ' and hold that allegations in the present case, if proved, would amount to a contravention of para 21 read with para 18 of the Drugs (Prices Control) Order, 1979, which is punishable under Section 7 of the .
However, for the reasons already given, we do not interfere with the acquittal of the respondents.
The appeal is disposed of accordingly.
Y.L. Lal Appeal allowed partly.
|
Respondent No. 1 is a firm dealing in medicines and respondents 2 and 3 are its managing parnter and pharmacist.
In contravention of the provisions of Drugs (Price Control) Order 1979, para 21 read with para 18 they charged from a Nursing Assitant of the Medical College Hospital, Kottayam, Rs. 90 in excess of the maximum retail price fixed for the sale of 15 tablets of Largactil of 100 mg each and 60p in excess for 100 tablets of Hipnotex of 5mg each.
According to the prosecution this act of their 's being in contravention of the provisions of the Order, was punishable under Section 7 of the and accordingly prosecution was initiated against the respondents.
The trial court found the respondents guilty and convicted them and sentenced respondent No. 1 firm to a fine of Rs. 2.000 and respondents 2 and 3 to three months simple imprisonment.
On appeal, the High Court of Kerala acquitted them taking the view that none of the aforesaid two medicines, namely Largactil and Hipnotex were 'formulations ' as defined in Section 2(f) of the Drugs (Price Control) Order 1979 and as such the sale of these drugs at higher rates than the prescribed was not punishable under paras 21 read with para 18 of the order.
The appellants have thus filed this appeal after obtaining special leave.
The question for decision in the present case relates to the correctness of the construction made by the High Court of the provisions of the 'Order '.
Partly allowing the appeal, this Court, HELD: A bulk drug is one which may be capable of use by itself or as an ingredient in any formulation.
[69G] Formulation is a medicine which may comprise even of one bulk 66 drug by itself or more than one bulk drug.
The definition of 'Formulation ' is very wide and includes even one bulk drug where that one bulk drug by itself is treated as a medicine.
[70B] The provisions of para 21 which in terms are meant to control sale prices of formulations specified in the Third Schedule as also the other provisions of the Order which in terms may be of limited application are specifically made applicable to all formulations as defined in the Order except only paragraphs 10 to 14 which have been expressly excluded.
It is by virtue of para 18 that the prohibition contained in para 21 has been made applicable to formulations not specified in the Third Schedule.
[70G H] The High Court misconstrued the provisions of the Drugs (Price Control) Order 1979.
The Court rejected that construction and held that the allegations in the present case, if proved, would amount to a contravention of para 21 read with para 18 of the 'Order ' which is punishable under Section 7 of the .
The Court however did not interfere with the acquittal of the respondents.
[72B C]
|
ivil Appeal Nos.
2646 52 of 1986.
From the Judgement and order dated the 12.10.1981 of the Punjab and Haryana High Court in Regular First Appeal Nos. 758, 760, 787, 814, 769, 1011 and 789 of 1979.
Govind Mukhoty, R.P. Bhatt, D.K. Garg, Prem Malhotra, K.C. Sharma and R.C. Kaushik for the Appellants.
S.P. Goel and Mahabir Singh for the Respondents.
The Judgement of the Court was delivered by PUNCHHI, J.
This bunch of appeals and special leave petitions are at the instance of the dissatisfied land owners whose lands were acquired in bulk by the State of Haryana, in the town of Hissar, for establishing a residential cum commercial complex.
The land totalled approximately 331 acres.
The Acquisition Collector appointed to determine the compensation belted the land in three parts awarding for block `A ' compensation at the rate of Rs. 4.13 per sq.
; for block `B ' at the rate of Rs. 2.43 per sq.
and for block `C ' at Rs. 1.65 per sq. yd.
The dissatisfied claimants took the matter in reference to the Addl.
District Judge, Hissar who maintained the belting, but raised the compensation for block `A ' to Rs. 10 per sq.
, block `B ' to Rs. 6 per sq.
and block `C ' to Rs. 4.50 per sq.
When the matter was taken up in First Appeal before the High Court, it was persuaded to wipe out `C ' and confine it to belting `A ' & `B '.
The entire evidence was considered by the High Court meticulously to come to the conclusion that belt `A ' should fetch compensation at the rate of Rs. 23 per sq.
and belt `B ' Rs. 16 per sq.
Still 3 not satisfied the claimants/appellants by special leave have approached this Court for further enhancement.
The goal of the appellants is that the belting as such should go and the land should uniformally be assessed to compensation at the rate of Rs. 42 per sq.
The foundation for the argument in the first instance is that the acquired land comprises of a large area, situated alongside the G.T. Road leading from Delhi to Hissar town in a strip approximately 3 kms.
in length on the other side of which was the railway line.
It was also commented that the belting had been done in a haphazard way.
Keeping in regard the nature of the land, it was asserted that the land having been acquired for building purposes, its quality as agricultural land should not have weighed with the courts below and compensation should have assessed uniformally space wise.
These arguments does not appeal to us.
Though the acquisition of ground space is the object in view, yet the tiller 's affect to keep his land more productive cannot be lost sight of in awarding compensation.
In fact the belting has kept in regard the quality of the land.
This is the reason for its appearing to be a haphazard line on the plan.
On the second limb of the argument, that it should have fetched uniform rate of compensation, we find no supportive material on record and done has been pressed before us on which we could change the decision, merely on the comment that belting is normally not resorted to.
We are not persuaded in the instant case to discard the belting system and lean towards uniformity.
The rate of Rs. 42 per sq.
is claimed on the basis that a part of land measuring about 125 sq.
which formed part of the acquired land, was, before the acquisition, purchased by a purchaser at the rate of Rs. 42 per sq.
and that was an indication that the land acquired would have fetched Rs. 42 per sq.
The High Court had rejected the contention of the appellants taking the twin view that firstly the land involved was small in measure and secondly it was fully constructed having a house and a godown facing the G. T. Road itself.
We find this reasoning sound.
Having not been able to persuade us, each of learned counsel for the appellants differently putforth that the sole instance which the High Court had rejected had later been relied by it in another case pertaining to other land under acquisition under the same notification and having awarded the rate of Rs. 42 per sq.
We regret our inability to entertain the argument because there is nothing on record to support the same.
The judgement in which such view has statedly been taken has not been brought on record as a piece of evidence to be relied upon by the claimants and no permission has 4 been sought to adduce additional evidence.
The said judgement cannot be used as a precedent even to persuade us to take the view that the rate should be Rs. 42 per sq.
for belt `A ' if not uniformally.
All these factors cumulatively lead us to the view that appellants have no case for enhancement and have been adequately compensated for the land acquired.
No interference is thus required in the instant case.
Accordingly for the view above taken, we dismiss the appeals as also the special leave petitions.
I.A. for condonation of delay in SLP unnumbered titled Kanhya Lal vs State of Haryana, is dismissed as withdrawn at the askance of the learned counsel for the appellant.
There shall be no order as to costs in all these cases.
V.P.R Appeals dismissed.
|
The appellants were the claimants land owners, whose lands were acquired for establishing a residential cum commercial complex.
The Land Acquisition Collector belting the land in three parts awarded compensation for block `A ' at the rate of Rs. 4.13 per sq.yd.; for block `B ' at the rate of Rs. 2.43 per sq.yd.
and for block `C ' at Rs. 1.65 per sq.
In First Appeal the High Court was persuaded to confine to belting `A ' & `B '.
The High Court fixed compensation at the rate of Rs. 23 per sq.yd.
for belt `A ' and for belt `B ' Rs. 16 per sq.yd.
The Claimants by special leave filed present appeals for enhancement contending that the acquired land comprises of a large area, situated alongside the G.T. Road in a strip approximately 3 kms.
in length on the other side of which was the railway line; that the belting had been done in a haphazard way; that the land having been acquired for building purposes, its quality as agricultural land should not have weighed; and compensation should have been assessed uniformally.
Dismissing the appeals, this Court, HELD: 1.
The rate of Rs. 42 per sq.yd. is claimed on the basis that a part of land measuring about 125 sq.yd. which found part of the acquired land, was, before the acquisition, purchased by a purchaser at the rate of Rs. 42 per sq.
and that was an indication that the land acquired would have fetched Rs. 42 per sq.yd.
[3E] 2.
The High Court had rejected the contention of the appellants taking the twin view that firstly the land involved was small in measure and secondly it was fully constructed having a house and a godown facing the G.T. Road itself.
This reasoning is sound.
[3F] 3.
The judgement in which Rs. 42 had been awarded in another 2 case has not been brought on record as a piece of evidence to be relied upon by the claimants, and no permission has been sought to adduce additional evidence.
The said judgement cannot therefore be used as a precedent even to persuade this Court to take the view that the rate should be Rs. 42 per sq.yd.
for belt `A ' if not uniformally.
All these factors cumulatively lead to the view that appellants have no case for enhancement and have been adequately compensated for the land acquired.
[3H; & A B]
|
Civil Appeal No. 763 of 1977.
From the Judgment and Order dated 30.7.1976 of the Calcutta High Court in Appeal No. 167 of 1972.
Raja Ram Agrawal, K.B. Rana and Praveen Kumar for Khaitan & Co. for the Appellant.
A. Subba Rao, P. Parmeshwaran and A.D.N. Rao for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
This appeal by special leave has been preferred against the judgment dated 30th July, 1976 of the Calcutta High Court in Appeal from Original Order No. 167/1972.
The facts in nutshell necessary for the decision of this appeal are that the Appellant Company, a licensee under the Central Excise and Salt Act, 1944 (hereinafter referred to as the Act) carried on during the relevant time, namely, 1st September, 1961 to 26th September, 1963, business of manufacturing different types of glasswared which were excisable goods under the Act.
The appellant used to present A.R.I. forms accompanied with price list of the goods and after paying excise duties calculated on the basis of the price lists used to remove the goods.
The appellant 's office was searched by the Excise Authorities on 26 September, 1963 and several documents, books and papers were seized.
As a consequence of this search and seizure it transpired that the appellant was maintaining two sets of bills.
The bills of one set were those on the basis of which the appellant used to pay excise duty 46 before clearance of the goods and those of the other were such which were never issued to the dealers.
In these two sets of bills inter alia the rate of discount was differently shown.
A notice dated 26th March, 1968 was served on the appellant by the Assistant collector of Central Excise, Calcutta II Division, Calcutta stating that it appeared that the appellant had, during the relevant period, not paid excise duty on the goods at the prices at which they were sold but duty was paid at lower rates declared by it.
The appellant was required to show cause as to why duty amounting to Rs. 1,43,633.84 p. on the prices at which the goods were actually sold, as found on scrutiny of sale vouchers/sale documents should not be recovered under rule 10A of the Central Excise Rule, 1944 (hereinafter referred to as the Rules.) The appellant, in reply to the show cause notice, inter alia asserted that it was the provisions of Rule 10 and not Rule 10A of the Rules which were attracted to the facts of the instant case and that consequently the initiation of proceedings against the appellant was barred by time.
This plea did not find favour with the Excise Authorities and the appellant was required, by order dated 26th August, 1968, to pay to the Central Government, an additional duty of Rs. 1,41,829.11 p.
This order was challenged by the appellant before the High Court under Article 226 of the Constitution of India.
A learned Single Judge of the High Court accepted the contention of the Rule 10 and not Rule 10A of the Rules was applicable and on this view the order dated 26th August, 1968 was quashed.
Aggrieved by that order, the respondents preferred an appeal before a Division Bench of the High Court.
The judgment of the learned Single Judge was reversed and on the finding that it was a case falling under Rule 10A, the writ petition was dismissed by the judgment under appeal.
The only point which has been urged by learned counsel for the appellant in support of this appeal is that the learned Single Judge was right in taking the view that the case fell within the purview of Rule 10 of the Rules and the Division Bench committed an error in reversing his judgment.
For the respondents on the other hand, it has been urged that on the fact found by the division Bench and indeed on the case set up by the appellant itself no exception could be taken to the finding of the Division Bench that it was Rule 10A of the Rules and not Rule 10 which was attracted to the facts of the instant case.
In order to appreciate the respective submissions made by learned counsel for the parties it would be useful to extract Rules 10 and 10A.
They read as hereunder: "10.
Recovery of duties or charges short levied or errones 47 ously refunded When duties or charges have been short levied through inadvertence, error, collusion or misconstruction on the part of an officer, or through mis statement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owning to such cause, erroneously refunded, the person chargeable with the duty or charge so short levies, or to whom such refund has been erroneously made, shall pay the deficiency or the amount paid to him in excess as the case may be, on written demand by the proper officer being made within three months from the date on which the duty or charge was paid or adjusted in the owners ' account, current, if any, or from the date of making the refund." "10A. Residuary powers for recovery of sums due to Government Where these Rules do not make any specific provision for the collection any duty, or of any deficiency in duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these Rules, such duty, deficiency in duty or sum shall on a written demand made by the proper officer, be paid to such person and at such time and place as the proper officer may specify.
In elaboration of his submission that it was a case covered by Rule 10 of the Rules learned counsel for the appellant pointed out that since the case of the respondents was that on the basis of the documents seized during the search of the appellant 's office on 26th September, 1963 it was found that the duty paid by the appellant on the basis of price lists furnished by the appellant at the time of clearance of the goods was deficient, it was a case where duty had been short levied "through mis statement as to the quantity, description or value of such goods on the part of the owner" as contemplated by Rule 10.
We find it difficult to agree with the submission.
The procedure adopted by the appellant/was indicated by the appellant under its letter dated 23rd March, 1961, a portion whereof as extracted by the learned Single Judge reads as hereunder: "We enclose herewith our three price lists for 1) Bottles and phials 2) Glass Wares and 3) Fancy Wares for the purposes of provisional assessment.
These price are inclusive of Central Excise duty.
As regards Trade discounts to 48 be deducted from the said prices as per Section 4 of the Act we declare that 1) 25% should be deducted from the price list for bottles and phials.
2) 35% from the price list for glass wares and 3) 20% from the price list for fancy wares over and above necessary deduction for Central Excise duty included in the prices.
" The learned Single Judge has also pointed out that the appellant used to clear the goods by executing bond and that in the specimen copy of the bond produced in court it was stated that whereas final assessment of excise duty of glass and glasswares made by the appellant from time to time could not be made for want of full particulars as regards value, description, quality or proof thereof or for non completion of chemical or other tests and whereas the appellant had requested the Excise Authorities as per Rule 9B of the Rules to make provisional assessment of excise duty of the goods pending final assessment, the appellent was giving a guarantee to the extent of the sum mentioned in the bond for payment of the duties.
The learned Single Judge has also pointed out that it appeared to be the common case of the parties that in order to facilitate the assessment of the goods by Excise Authorities, the appellant used to file the price list in advance and after acceptance provisionally of the price list, the goods used to be cleared and if subsequently and discrepancy was detected or found, the same used to be paid by the appellant.
The question as to whether Rule 10 or Rule 10A of the Rules was applicable has to be determined in the background of the appellant as indicated above.
The legal position that Rule 10A does not apply where the case is covered by Rule 10 of the Rules is well settle in view of the decision of this Court in N.B. Sanjana vs Elphinstone Mills, ; , on which reliance has been placed by learned counsel for the appellant.
Consequently, Rule 10A could be attracted only if the case does not fall within the purview of Rule 10.
It was conceded before the learned Single Judge on behalf of the respondents that the respondents were not proceeding under the provision of Rule 9B.
On this basis and on his own finding also that Rule 9B was not attracted, the learned Single Judge held that it was not a case of provisional assessment but a case of regular assessment in pursuance whereof duty was paid by the appelant and that since the case of the respondents was that the appellant had manufactured documents as was revealed as a consequence of the search and seizure referred to above it was a case of short levy due to mis statement by the appellant.
Consequently, the case clearly fell 49 within the purview of Rule 10 of the Rules.
The Division Bench of the High Court in appeal did not, and in our opinion rightly, subscribe to the aforesaid finding.
Simply because Rule 9B of the Rules was conceded not to have been taken recourse to by the respondents so that a provisional assessment could be said to have come into existence in its statutory sense as contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had come into being at that time.
In our opinion, in view of the procedure adopted by the appellant referred to above it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent varification and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent verification.
In the judgment appealed against the Division Bench of the High Court has found that there was no assessment as is understood in the eye of law but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of an incomplete assessment which the Excise Authorities were entitled to complete under Rule 10A.
In taking this view the Division Bench of the High Court has relied on a decision of this Court in Assistant Collector of Central Excise, Calcutta Division vs national Tobacco Co. of India Ltd.; , In that case also the Company used to furnish quarterly price lists which used to be accepted for purpose of enabling the Company to clear its goods and according to the Excise Authorities these used to be verified afterwards by obtaining evidence of actual sale in the market before issuing final certificates that the duty had been fully paid up.
The prices of the goods to be cleared were furnished by the Company on forms known as A.R.I. forms in that case also.
It was held that only a mechanical adjustment for settlement of accounts by making debit entries was gone through and that it could not be said that any such adjustment was assessment which was a quasi judicial process and involved due application of mind to the fact as well the requirements of law.
With regards to the debit entries it was held that the making of such entries was only a mode of collection of tax and even if payment or actual collection of tax could be spoken of as a de facto "levy" it was only provisional and not final.
It could only be clothed or invested with the validity after carrying out the obligation to make an assessment to justify it.
It was also held that it was the process of adjustment that really determined whether levy was short or complete.
It was not a factual or presumed levy which could in 50 a disputed case prove an "assessment.
" This had to be done by proof of the actual steps taken which constitute assessment.
We are of the opinion that in view of the procedure adopted by the appellant in the instant case referred to above and the law laid down by this Court in the case of national Tobacco Co. of India Ltd. (supra) it is not possible to take any exception to the finding of the Division Bench in the judgment appealed against that it was a case which fell within the purview of Rule 10A and not Rule 10 of the Rules.
In the result, we find no merit in this appeal.
It is accordingly dismissed with costs.
N.V.K. Appeal dismissed.
|
The appellant company a licensee under the central Excises and Salt Act, 1944 and during the relevant period namely 1st September, 1961 to 26th September, 1963 carried on the business of manufacturing different types of glass wares which were excisable goods under the Act.
The appellant used to present A.R.I. forms accompanied with price lists of the goods and after paying excise duties calculated on the basis of the price lists used to remove the goods.
The office of the appellant was searched by the Excise Authorities on 26th September, 1963 and several documents, books and papers were seized, and as a consequence thereof it transpired that the appellants were maintaining two sets of bills.
The bills of one set were those on the basis of which the appellant used to pay excise duty before clearance of the goods and those of the other were such which were never issued to the dealers.
In these two sets of bills, the rate of discount was differently shown.
A notice dated 26th March, 1968 was served on the appellant by the Assistant Collector stating that it appeared that during the relevant period the appellant had not paid excise duty on the goods at the prices at which they were sold, but duty was paid at lower rates and requiring it to show cause as to why duty on the prices at which the good were actually sold, as found on scrutiny of sale vouchers/sale documents should not be recovered under Rule 10A of the Central Excise Rules, 1944.
In reply the appellant asserted that it was the provision of Rule 10 and not Rule 10A which was attracted to the facts and consequently the initiation of proceedings was barred by time.
This plea did not find favour with the Excise Authorities, and the appellant was required to pay the additional duty of Rs. 1.41 lakhs.
The aforesaid order was challenged by the appellant before the 44 High Court under Article 226 of the Constitution and a Single Judge accepted the contention of the appellant the Rule 10 and not Rule 10A of the Rules was applicable and on this view quashed the order dated 26th August, 1968 The respondents preferred and appeal to the Division Bench which has reversed the order of the Single Judge, on the finding that it was a case falling Rule 10A and dismissed the writ petition.
In the appeal to this Court it was contended that the single Judge was right in taking the view that the case fell within the purview of Rule 10 of the Rules and that the Division Bench committed an error in reversing the Judgment, while the Revenue contested the appeal urging that on the facts found by the division Bench, and indeed on the case set up by the appellant itself no exception could be taken to the finding of the Division Bench that it was Rule 10A and not Rule 10 which was attracted to the facts of the case.
Dismissing the Appeal, this Court, HELD: 1.
The question as to whether Rule 10 or Rule 10A was applicable has to be determined in the background of the procedure which was followed.
The legal position is that Rule 10A does not apply where the case is covered by Rule 10 of the Rules.
[48E] N.B. Sanjana vs Elphinstone Mills, ; relied on.
Simply because Rule 9B of the Rules, was conceded not to have been taken recourse to by the respondents so that provisional assessment could be said to have come into existence in its statutory sense as contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had came into being at that time.
[49A B] 3.
In view of the procedure adopted by the appellant it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent verification, and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent varification.
[49B C] 4.
The Division Bench of the High Court has found that there was no assessment as is understood in the eye of law, but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of incomplete assessment which the Excise Authorities were entitle to complete under Rule 10A.[49D] Assistant Collector of Central Excise, Calcutta Division vs National Tobacco Co. of India Ltd., ; , referred to.
The instant case therefore falls within the purview of Rule 10A and not Rule 10 of the Rules.
|
ivil Appeal No. 1535 (NT) of 1978.
From the Judgement and Order dated 10.2.1976 of the Calcutta High Court in Income Tax Reference No.220 of 1969.
S.C. Manchanda, K.P. Bhatnagar and Ms. A. Subhashini for the Appellant.
C.S.S. Rao for the Respondent.
The Judgement of the Court was delivered by KASLIWAL, J.
This appeal by grant of certificate under Section 261 of the Income Tax Act, 1961 by High Court of Calcutta rises the following question for consideration: "Whether on the facts and circumstances of the case in an appeal filed under Section 248 of the Income Tax Act, 1961, the A.A.C. had juridiction to deal with the quantum of the sum chargeable under the provision of the said Act from which the assessee was liable to deduct tax under Section 195 thereof?" Brief facts of the case are that the respondent assessee is a private limited company incorporated in India.
The assessee company carried on some business in collaboration with M/s. Wilhelm Ruppmann, Industrieofenbau, Stuttgart W, Gutenbergstr.
By an agreement entered on 1st January, 1963 it was agreed that the foreign collaborators would grant to the Indian company during the term: (a) the exclusive right to manufacture the licenses equipment in India.
(b) the exclusive right to sell the licensed equipment in India under the "Wesman Ruppnan" such sale to be effected by the agency agreed upon, (c) permit licensees to export the licensed equipment freely outside India, except to countries where the licensors have similar license arrangements.
Clause 5 of the agreement provided for payment to the licensees of the following sums: 120 (a) "A payment of 5 per cent towards the cost of detailed working drawings in terms of clause 3 (b).
The payment for these drawings shall be admissible in those cases where new drawings are supplied by the Licensors abroad i.e. from their or their associates works design offices at Stuttgart or elsewhere in Europe.
This payment shall not be admissible for minor modification of drawings and designs which have already been purchased from the Licensors and paid for by the Licensees nor on repeat orders executed by the Licensees.
This fee shall be calculated on the ex factory selling price of the licensed products after deducting the value of imported components used in the manufacture thereof, if any, payment for cost of drawings shall be arranged by the Licensees against supply of individual furnance designs, such payment being effected forthwith against delivery of drawings." (b) "A royalty at 5 per cent (five) which will be subject to Indian taxes on the annual net ex factory sale value of each licensed equipment manufactured by the Licensees shall be payable to the Licensors.
The value of imported components, if any, that may be used in the manufacture of the Licensed equipment shall be deducted in computing the ex factory price of the licensed equipment for purpose of payment of royalty.
The payment has to be effected together with the report referred to under Clause 6".
The assessment year involved in the case is 1964 65.
In the matter of remittance to the non resident company, the assessee vide applications dated June 4, 1964 and 18.8.64 requested the Income Tax Officer to grant necessary certificate in order to enable them to approach the Reserve Bank of India for remittance to their collaborators.
The said applications related to the invoice in regard to supply of drawings for manufacture of furnances in India in accordance with their collaboration agreement.
The Income Tax Officer placing reliance on the terms of the agreement came to the conclusion that the payments made by the applicant company to the non resident collaborators in Germany could be grouped under the heads Royalties and remuneration for labour or personal services.
According to the Income Tax Officer neither the remittance fell within the exempted 121 category nor did the agreement for avoidance of double taxation between Indian and the Federal German Republic apply to the facts of the instant case.
According to him, the payment of the remittances in respect of which the applications had been made represented payment for supply of technical know how and for use of trade name and manufacturing right of the licensor company.
He did not agree with the submissions of the assessee company and disposed of the said applications vide order dated 5th September, 1964 under Sec.
195(2) of the Income Tax Act, 1961 directing the assessee company to deduct tax @ 65% on the entire sum proposed to be remitted.
The assessee company preferred an appeal to the Appellate Assistant Commissioner.
It did not dispute the assessability of the royalty @ 5% mentioned in Clause 5(b) of the agreement aforesaid.
It, however, challenged that the whole of the sum of 5% specified in clause 5(a) was not chargeable to income tax in India.
In regard to the same the assessee submitted that there was no liability to deduct tax in terms of the order of the Income Tax Officer as, in its opinion, (a) the services, if any, enumerated under clause 5(a) of the agreement were performed outside India and the payments were also being made outside India so that the amount paid was not chargeable to tax under the Indian Statute, (b) there was a bar to assessment under the Income Tax Act, 1961 in terms of an agreement for avoidance of Double Taxation between India and the Federal German Republic referred to above and (c) in the alternative, since the cost of the work drawings to the foreign collaborators exceeds the remuneration, the same was not taxable.
The Appellate Assistant Commissioner did not accept the first two of the aforesaid contentions of the assessee.
With regard to the third contention, however, the Appellate Assistant Commissioner came to the conclusion that it would be reasonable to determine the said cost by estimate which he did at 75 per cent of the amount paid to the non resident.
In his opinion the net profit chargeable to tax was accordingly 25% of the amount paid.
The department filed an appeal against the aforesaid order of the Appellate Assistant Commissioner and the assessee filed a cross objection, before the Income Tax Appellate Tribunal.
Both the departmental appeal and the assessee 's cross objections were heard together and decided by a consolidated order of the Tribunal.
The departmental representative made two submissions.
The first was that the A.A.C.was wrong in holding that the quantum of income could be determined 122 in an appeal under Section 248.
The second was that the A.A.C. was wrong in allowing expenses at 75% of the remittance.
The first point of the assessee 's cross objection was covered by the first ground of the departmental appeal mentioned above.
The second point raised in the assessee 's cross objection was to the effect whether the payment for the cost of drawings were exempt from the tax under the provisions of Double Taxation Avoidance Agreement or not.
The Tribunal, taking the points raised in the departmental appeal first, came to the conclusion that it was difficult to accept the argument that a total denial enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax.
In the opinion of the Tribunal the interpretation of Section 248 of the Income Tax Act as given by the A.A.C. was correct.
According to the Tribunal the A.A.C. could pass an order regarding the quantum.
The Tribunal held that the same could not be said to be unreasonable.
In the result the departmental appeal was dismissed.
In regard to the assessee 's cross objection, the Tribunal held that first part of the cross objection had already been dealt with in the appeal preferred by the departmental and to that extent the assessee 's cross objection on the said issue automatically succeeded.
In regard to the second issue, the Tribunal came to the conclusion that the amount brought to charge by the Income Tax Officer was not exempt under the Double Taxation Avoidance Agreement between India and the Federal Republic of Germany vide Articles 3(1) and 16 of the Agreement.
The assessee;s cross objection was thus, partly allowed.
At the instance of the Commissioner of Income Tax, West Bengal 1 the Tribunal referred the above mentioned question for the opinion of the High Court.
The High Court followed its earlier Judgement dated 12th August, 1970 in Income Tax Reference No. 31 of 1970 (Commissioner of Income Tax West Bengal 1 Calcutta vs M/s. Beni Ltd., Calcutta) and answered the said question in the affirmative and in favour of the assessee by order dated 10th February, 1976.
The department filed an application for leave to appeal to the Supreme Court and the High Court by order dated 8.9.1977 certified it to be a fit case for appeal to the Supreme Court under Section 261 of the Income Tax Act, 1976 and issued a certificate accordingly.
We have heard Mr.
S.C. Manchanda, Sr.
Advocate for the appellant but nobody appeared for the respondent.
The High Court in answering the reference placed reliance on its earlier Judgement dated August 12, 1970 but the copy of the said Judgement has not been supplied in the paper book as such we were derived to go through the 123 reasoning given by the High Court in answering the reference in the affirmative and in favour of the assessee.
It was contended by Mr. Manchanda that the order passed by the Income Tax Officer under Sec. 195(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act) was not appealable to A.A.C. under Sec. 248 of the Act.
His further contention was that the order passed by A.A.C. was totally without juridiction and the only remedy available to the assessee was to file a writ petition to High Court under Article 226 of the Constitution of India.
In our opinion this question does not arise before us nor such question was raised in the reference before the High Court.
The Commissioner of Income Tax only sought to refer the following question for the opinion of the High Court: "Whether, on the facts and circumstances of the case in appeal filed under Section 248 Income Tax Act, 1961, the Appellate Assistant Commissioner had jurisdiction to deal with the quantum of the sum chargeable under the provision of the said Act from which the assessee was liable to deduct tax under Section 195 thereof?" The above question does not contain the objection that no appeal was maintainable under Section 248 of the Act against the order of the Income Tax Officer passed under Section 195(2) of the Act.
The High Court was not called upon to decide any question of juridiction as sought to be raised by Mr. Manchanda before us nor the High Court has granted any certificate in this regard.
So far as the question referred to the High Court is concerned, its language shows that there was no controversy about the appeal filed under Sec. 248 of the Act and the only question raised was whether the A.A.C. had jurisdiction to deal with the quantum of the sum chargeable under the provisions of the said Act from which the assessee was liable to deduct tax under Sec.
195 thereof.
The argument thus raised by Mr. Manchanda before us that Order under Sec.
195 (2) was not appealable under Sec.
248 of the Act, is not available.
Even otherwise the language of Sec.
248 of the Act is wide enough to cover any order passed under Sec. 195 of the Act.
The case Meteor Satellite Ltd. vs Income Tax Officer, Companies Circle IX, Ahmedabad, [1980] 121 ITR p. 311 cited in support of the above contention by Mr. Manchanda is of no relevance.
It was next contended by Mr. Manchanda that the A.A.C. was wrong in holding that the quantum of income could be determined in an appeal under Section 248.
It was also argued that the A.A.C. was 124 also wrong in allowing the expenses at 75% of the remittance.
It would be proper to reproduce Section 248 of the Act which reads as under: Section 248: Appeal by Person Denying Liability to Deduct Tax: "Any person having in accordance with the provisions of Sections 195 and 200 deducted and paid tax in respect of any sum chargeable under this Act, other than interest, who denies his liability to make such deduction, may appeal to the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) to be declared not liable to make such deduction.
" It was argued by Mr.
Manchanda that under Section 248 a person could deny his liability to make such deduction but there was no power to determine the quantum and to say as to what extent the said remittance will be taxed.
We find no force in the above contention.
Section 248 makes a mention of Sections 195 and 200 and it does not speak of the sub clauses of Sec. 195 either (1) or (2).
When once an appeal has been preferred to the A.A.C. on the matter of liability of the company to deduct taxes, the A.A.C. is well within his competence to pass an order on the quantum also.
In our opinion the A.A.C. was also competent to pass an order with regard to quantum when once he is seized of the matter.
Under Section 248 a person having deducted and paid tax under Section 195 may appeal to the A.A.C. denying his liability to make such deduction and for a declaration that he is not liable to make such deduction.
It is thus difficult for us to accept the arguments that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax.
The right of appeal given under Section 248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the A.A.C. was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer.
251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals).
Clause (c) of Sub Sec.
(1) of Sec.
251 reads as under: "Sec. 251(1)(c): "In any other case, he may pass such orders in the appeal as he thinks fit".
125 The above provision gives full power to the Appellate authority to pass such orders in the appeal as he thinks fit.
There is no controversy before us that appeal could lie before A.A.C. under Sec. 248 of the Act.
We are thus in agreement with the view taken by the High Court and the Income Tax Appellate Tribunal.
The appeal thus fails and is dismissed with no order as to costs as nobody has appeared on behalf of the respondent.
R.P. Appeal dismissed.
|
The respondent assessee, a private limited company and a licensee, under an agreement was required to pay to its foreign colaborators (licensors) certain amounts towards cost of working drawings and royalty.
It applied to the Income Tax Officer to grant the necessary certificate to enable it to approach the Reserve Bank of India for remittance to its foreign collaborators.
The Income Tax officr held that the remittance represented payment for supply of technical know how and for use of the trade name and manufacturing right of the licenser company and that the said amount neither fell within the exempted category nor did the agreement for avoidance of double taxation apply to the case, and directed the assessee to deduct tax @ 65% on the sum to be remitted.
The assessee did not dispute the assessability of the royalty, but challenged in appeal, that since the whole of the sum towards the cost of working drawings exceeded the remuneration, the same was not taxable, and that the assessment was barred by the Double Taxation Avoidance Agreement.
The Appellate Asstt.
Commissioner rejected the Double Taxation Avoidance plea, but determined the cost of the working drawings at 75% and the net profit chargeable at 25% of the amount to be remitted to the non resident company.
The Revenue appealed before the Appellate Tribunal challenging the jurisdiction of the appellate authority under section 248 to determine the quantum of income, and that the Appellate Asstt.
Commissioner was wrong in allowing expenses @ 75% of the remittance.
The assessee filed cross objection.
Holding that the Appellate Asstt.
Commissioner could pass an order regarding the quantum, that the amount fixed by him 118 could not be said to be unreasonable, and that the amount brought to charge by the Income Tax Officer was not exempt under the Double Taxation Avoidance Agreement, the Tribunal dismissed the Department 's appeal and partly allowed the assessee 's cross objection.
At the instance of the Revenue, the Tribunal referred the question to the High Court which was answered in favour of the assessee.
In the appeal by certificate to this Court, it was contended that: the order passed by the Income Tax Officer under section 195(2) was not appealable to the Appellate Asstt.
Commissioner under section 248, and that the appellate authority had no jurisdiction to deal with the quantum of the sum chargeable under the provision of the Income Tax Act from which the assessee was liable to deduct tax under section 195.
Dismissing the appeal, this Court, HELD: 1.1 Once an appeal has been preferred to the Appellate Asstt.
Commissioner under section 248 of the Income Tax Act, 1961, on the matter of liability of the company to deduct taxes, the appellant authority was well within its competence to pass an order on quantum also.
[124D] 1.2 Section 251(1)(c) gives full power to the appellate authority to pass such orders in the appeal as it thinks fit.
[125A] 1.3 The right to appeal under section 248 of the Income Tax Act is clear and it cannot be said that such a right is restricted and the Appellate Asstt.
Commissioner was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer.
[124F] 2.
The language of section 248 of the Income Tax Act, 1961 is wide enough to cover any order passed under section 195.
The Appellate Asstt.
Commissioner was also competent to pass an order with regard to quantum when once he is seized of the matter.
[123F; 124D] 3.
Under section 248 a person having deducted and paid tax under s.195 may appeal to the Appellate Asstt.
Commissioner denying his liability to make such deduction and for a declaration that he is not liable to make such deduction.
[124E] Meteor Satellite Ltd. vs Income Tax Officer Companies Circle IX, Ahmedabad, , held inapplicable.
|
Civil Appeal No. 936 of 1977.
From the Judgement and Order dated 16.9.1976 of the Bombay High Court in S.C.A. No. 2741 of 1971.
Shishir Sharma and P.H. Parekh for the Appellant.
Dr. N.M. Ghatate, S.V. Deshpande for the Respondent.
83 The Judgement of the Court was delivered by K.N. SAIKIA, J.
This appeal by Special Leave is from the Judgement of the High Court of Bombay, dated 16th September, 1976, in Special Civil Application N. 2741 of 1971 upholding the Judgement of the Maharashtra Revenue Tribunal.
The suit land bearing Survey No. 182, owned by Shankarlal Kunjilal, was taken under Government management as per order of the Assistant Collector, Jalgaon bearing No. TEN.
WS 946 dated 14.12.1950 as the land was lying fallow for two consecutive years.
The Mallatdar, Raver was appointed as a Manager thereof under Section 45 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act. ' After assuming the management the land was leased out to the appellant Dhondu Choudhary by the Mamlatdar for a period of 10 years by an agreement of lease dated 7.12.1951.
The period of lease accordingly expired on 6.12.1951.
The period of lease accordingly expired on 6.12.1961.
However, the management of the land was terminated by the Government by the Assistant Collector 's order dated 27.7.1963, and the possession thereof was ordered to be restored to the respondent landlord.
There was nothing on the record to show that the lease which expired on 6.12.1961 was extended by the Manager thereafter till the termination of management by order dated 27.7.1963.
The appellant claimed that he was paying rent to the Mamlatdar during the period of 7.12.1961 to 27.7.1963 and thus continued to a be tenant in respect of the land.
He filed a Civil Suit against the respondent in the Court of Civil Judge, Raver, who made a reference to the Mamlatdar, Raver who held that the appellant continued to be tenant.
The respondent 's appeal to the Assistant Collector having failed, he moved a revision application before the Maharashtra Revenue Tribunal, hereinafter referred to as `the Tribunal ' wherein the question arose whether the appellant 's tenancy was subsisting on 27.7.1963, and whether he had become the tenant in respect of the land since that date under the Act.
Relying on a bench decision of the Bombay High Court in Special Civil Application No. 1077 of 1961 Ghambhir Lal Laxman Das vs Collector of Jalgaon, (decided on 20.12.1962) wherein it was held that the person to whom lease was granted by the Manager of the land which was taken under Government management, could not continue to be the tenant after the expiry of the period of 10 years without a fresh lease, and that after the management was terminated by the 84 Government on expiration of the lease, the tenancy under the lease could not be said to be subsisting on the date on which the management was terminated.
The Tribunal held that the appellant could not continue as tenant since termination of the lease on 27.7.1963.
The Tribunal further held that since the land was taken under the Government management by the order of the Assistant Collector under Section 88(1) of the Act the provision s of Sections 1 to 87 were not applicable and the appellant, therefore, could not continue to be tenant after expiration of the period of lease on 6.12.1961.
The High Court in the Special Application under Article 227 of the Constitution of India having upheld the above finding of the Tribunal, the appellant obtained Special Leave.
The only submission of the learned counsel for the appellant Mr. Shishir Sharma is that the appellant having continued payment of rent to Mamlatdar even after expiry of lease till the termination of management, he continued to be a tenant which the landlord could not avoid on resumption of the land.
Dr. N.M. Ghatate, the learned counsel for the respondent, submits that the appellant could by no means continue to be a tenant after his lease expired and no fresh lease was granted to him and more so after the management was terminated on 27.7.1963.
We find force in Dr. Ghatate 's submission.
Admittedly the management of the land was assumed by the State Government under Section 65 of the Act.
Section 65 deals with assumption of management of lands which remained unclutivated, and says: "65.
(1) If it appears to the State Government that for any two consecutive years, any land has remained uncultivated or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control the State Government may, after making such inquiry as it thinks fit, declare that the management of such land shall be assumed.
The declaration so made shall be conclusive.
(2) On the assumption of the management, such land shall vest in the State Government during the continuance of the management and the provision of Chapter IV shall mutatis mutandis apply to the said land: 85 Provided that the manager may in suitable cases give such land on lease at rent even equal to the amount of its assessment: Provided further that, if the management of the land has been assumed under sub section (1) on account of the default of the tenant, such tenant shall cease to have any right or privilege under Chapter II or III, as the case may be, in respect of such land, with effect from the date on and from which such management has been assumed.
" Admittedly, the Manager was appointed under Section 45 of the Act, Section 45 deals with vesting of estate in management, and says: "45.
(1) On the publication of the notification under section 44, estate the in respect of which the notification has been published shall, so long as the management continues, vest in the State Government.
Such management shall be deemed to commence from the date on which the notification is published and the State Government shall appoint a Manager to be in charge of such estate.
(2) Notwithstanding the vesting of the estate in the State Government under sub section (1), the tenant holding the lands on lease comprised in the estate shall, save as otherwise provided in this Chapter, continue to have the same right and shall be subject to the same obligations, as they have or are subject under the proceeding Chapters in respect of the lands held by them on lease.
" Section 61 deals with termination of management, and says: "61.
The State Government, when it is of opinion that it is not necessary to continue the management of the estate, by order published in the Official Gazette, direct that the said management shall be terminated.
On the termination of the said management, the estate shall be delivered into the possession of the holder, or, if he is dead, of any person entitled to the said estate together with any balances which may be due to the credit of the said holder.
All acts done or purporting to be done by the Manager during the continuance of the management of the estate shall be binding on the holder or to any person to whom the possession of the estate has been delivered.
" 86 Thus on termination of the management the suit land in the instant case was to be delivered into the possession of the respondent holder and all acts done or purporting to be done by the Manager during the continuance of the management of the estate should be binding on the holder or on any person to whom the possession of the estate had been delivered.
In the instant case the finding of the Courts below is that after expiry of the lease no fresh lease was granted by the Manager.
In view of this finding, the appellant 's claim to have continued as the tenant even after expiry of the lease on 6.12.1961 and till 27.7.1963, the date of termination, by paying rent for the period to the Mamlatdar would be of no avail, in the absence of fresh lease after expiry of the 10 years lease on 6.12.1961.
The Tribunal followed the binding decision of the Bombay High Court holding that there was no lease in favour of the appellant and that by mere holding over he could not have continued the status of a tenant.
This would be so because the Act does not envisage the Government as a landholder but only as Manager.
While delivering back the land into the possession of the landholder, it could not be burdened with any tenancy created or resulting while under management.
Besides, there could be no privacy between the landlord and the erstwhile tenant under Government in the matter of tenancy.
Between the appellant and the respondent landlord, therefore, no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder.
Mr. Sharma 's submission that the appellant was a deemed tenant is also not tenable.
The appellant could not have been a deemed tenant under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government.
It says: "88.
(1) Save as otherwise provided in sub section(2), nothing in the forging provisions of this Act shall apply (a) to lands belonging to, or held on lease from, the Government; xxx xxx xxx xxx xxx xxx xxx xxx (d) to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87: 87 Provided that from the date on which the land is released from management, all the foregoing provisions of this Act shall apply thereto; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx" In Keshav Vithal Mahatre vs Arbid Ranchhod Parekh, [1973] Bom.
L.R. LXXXV 694, a learned Single Judge has held that a lease of land granted by a Manager under section 47 of the Bombay Tenancy and Agricultural Lands Act, 1948, comes to an end with the termination of the management of the land by virtue of section 61 of the Act.
If the tenant continues to remain on the land thereafter, he would be cultivating it unlawfully as a trespasser and he cannot, therefore, claim to be a deemed tenant under section 4 of the Act.
This is consistent with the decision in Ghambhir Lal 's case(supra) relied on by the Tribunal.
Thus, Sections 4 and 4B were not applicable during the period from expiry of the lease to the termination of management.
In the result, we find no merit in this appeal and it is dismissed, but without any order as to costs.
V.P.R Appeal dismissed.
|
The suit land was taken under Government management as it was lying fallow for two consecutive years.
The Mamlatdar, appointed as a Manager thereof under Section 45, of the Bombay Tenancy and Agricultural Lands Act, 1948, after assuming management, leased out the said land to the appellant for a period of 10 years by an agreement of lease dated 7.12.1951.
The period of lease expired on 6.12.1961.
However, the management of the land was terminated by Government by the Assistant Collector 's order dated 27.7.63 and possession thereof was ordered to be restored to the respondent landlord.
The appellant filed a Civil Suit against the respondent contending that he was paying rent to the Mamlatdar during the period 7.12.1961 to 27.7.1963 and thus continued to be a tenant in respect of the land.
The Civil Judge made a reference to the Mamlatdar, who held that the appellant continued to be tenant.
The respondent 's appeal to the Assistant Collector having failed, a revision application was moved before the Revenue Tribunal wherein the question arose whether the appellant 's tenancy was subsisting on 27.7.1963, the date of termination of the management.
The Tribunal held that the appellant could not continue as tenant on the termination of the management, since the land was taken under the Government management under Section 88(1) of the Act.
82 The High Court in the Application under Article 227 of the Constitution of India having upheld this finding of the Tribunal, the appellant filed Special Leave petition to this Court.
The appellant contended that having continued payment of rent to the Mamlatdar even after expiry of the lease till the termination of management, he continued to be a tenant which the landlord could not avoid on resumption of the land, while the respondent submitted that the appellant could by no means continue to be a tenant after the expiry of lease, and that no fresh lease was granted to him after the management was terminated.
Dismissing the appeal, this Court, HELD: 1.
On the finding of the courts below that after the expiry of the lease, no fresh lease was granted by the Manager, the appellant 's claim to have continued as the tenant even after expiry of the lease on 6.12.1961 and till 27.7.1963, the date of termination, by paying rent for the period to the Mamlatdar would be of no avail, in the absence of fresh lease after expiry of the 10 years lease on 6.12.1961.
This would be so because the Act does not envisage the Government as a landholder but only as Manager.
While delivering back the land into the possession of the landholder, it could not be burdened with any tenancy created or resulting while under management.
Besides, there could be no privacy between the landlord and the erstwhile tenant under Government in the matter of tenancy.
Between the appellant and the respondent landlord, therefore, no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder.
[86B D] 2.
The appellant could not have been a deemed tenant either under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government.[86E]
|
N: Criminal Appeal No. 326 of 1979.
From the Judgement and Order dated 4.5.1979 of the Gujarat High Court in Criminal Appeal No. 389 of 1976.
T.U. Mehta, P.H. Parekh and Ms. Geetanjali Mathrani for the Appellant.
D.A. Dave, Anip Sachthey and B.R. Jad for the Respondent.
The following Order of the Court was delivered.
The appellant was charged under Section 302 I.P.C. for causing murder of Gangaben, her brother 's wife , in the early hours of 11th June, 1975 by pouring kerosene on her person and setting her aflame.
The marriage had taken place with Jayantilal, the brother of the appellant, hardly three months before the incident in question.
On the date of the incident the deceased was in the husband 's house when the unfortunate incident took place.
On hearing the cries a neighbor Prahladbhai went to the house and found that the deceased was inside the kitchen.
He pushed opened the door and saw the deceased aflame.
The said Prahladbhai, Bhanubhai, the brother of the appellant, and others took her to Shardaben Hospital for treatment.
They reached the casualty department at about 6.45 a.m. and thereafter she was admitted to the Burns Ward as an indoor patient at about 6.50 a.m.
Within five minutes thereafter PW 5 Dr. Kritikumar Solanki examined her.
While taking her case history he enquired of the injured as to what had happened.
The injured replied "my nanad (sister in law) burnt me".
He prescribed certain medicines, noted the case history and thereafter instructed the nurse.
PW 4 Pankajben, to give the treatment.
Dr. Solanki was incharge of the Burns Ward at the relevant time as PW 2.
Dr. Suresh Ambvani, was absent.
Dr. Ambvani arrived at about 8.30 a.m. in the ward and examined the patient.
After noting her pulse, etc., he asked her how she had received the burns.
She told him that she had been burnt.
On further questioning she stated that her husband 's sister and burnt her.
Dr. Ambvani thereupon asked her the name of her husband 's sister which she disclosed as Padma, the appellant before us.
Dr. Ambvani later made a note about the information divulged by the victim on the police `yadi ' which was received.
92 at about 2.45 p.m. to ascertain if the victim was in a fit condition to make a dying declaration.
After the victim was brought to the hospital a telephone message was sent to Madhupura Police Station.
The investigating officer in the course of investigation recorded the panchnama of the scene of occurrence at about 10.15 a.m.
The panchnama shows that the residence of the victim was on the first floor.
In the outer room pieces of burnt clothes and a peeled skin piece were found.
To the south thereof was the kitchen which was smelling of kerosene.
Pieces of burnt clothes were also lying in that kitchen.
There was a primus with a burner and broken match box soiled with water lying alongside certain garments,namely, two blouses, two petti coats and two half burnt sarees.
There was water on the floor.
Inspector Nagori claims to have interrogated the accused on the same day but arrested her on the next day at about 5.00 p.m.
The investigation thereafter proceeded in usual course and ultimately the appellant came to be charged as stated above.
The prosecution mainly relies on the evidence of the two medical men PW 2 Dr. Ambvani and PW 5 Dr. Solanki.
In addition thereto reliance is placed on the evidence of the two nurses PW 3 Rukshmaniben and PW 4 Pankajben.
The neighbor PW 7 Prahladbhai was also examined but he turned hostile.
On an appreciation of the evidence of these witnesses the learned City Session Judge, Ahmedabad, came to the conclusion that this was a case of homicidal death.
That conclusion has been confirmed by the High Court and has not been contested before us.
With regard to the evidence of the two medical men the trial judge concluded that there was no reason to doubt their testimony since the same was corroborated by the contemporaneous entries made by them in the case paper and the police `yadi '.
Taking note of the evidence of PW 1 Dr. Purohit who performed the post mortem a nd the evidence of PW 5 Dr. Solanki, he came to the conclusion that the victim was in a position to speak.
having regard to the fact that she had 90% of burns, her pulse was 130, respiration was 20 and her general condition was not good, he concluded, relying on the decisions of this Court in Balak Ram & Anr.
vs State of U.P., ; (1975 Crl.
Appeals Reporter 39) and Lallubhai vs State of Gujarat, that the deceased could not be in a fit state of mind when she made the dying declaration.
He thought it unsafe to place implicit reliance on the said evidence particularly because it was the appellant 's contention that she was not on good 93 terms with her brother i.e. the husband of the deceased.
The learned trial Judge also thought that the possibility of torturing could not be ruled out.
In this view, that he took, he gave the benefit of doubt to the appellant and acquitted her.
The State feeling aggrieved, filed an appeal, being Criminal Appeal No. 389 of 1976, which was heard and decided by a Division Bench of the High Court of Gujarat on 4th may 1979.
The High Court on a re appreciation of the prosecution evidence concluded that the view taken by the learned Sessions Judge was thoroughly untenable.
The High Court pointed out that two main reasons which weighed with the learned Sessions Judge for acquitting the appellant were "(1) that the deceased had not the requisite mental condition so as to make acceptable dying declaration: and (ii) that her husband was very much near the cot of the deceased, and hence, the possibility of tutoring the deceased cannot be ruled out".
The High Court closely examined both these reasons and concluded that they could not be supported by the evidence on record.
Being conscious of the fact that while dealing with an acquittal appeal, the High Court should give due weight to the views of the trail court on the question of credibility of the prosecution evidence and should not lightly interfere with its appreciation, it carefully scrutinized the evidence, particularly in regard to the two oral dying declarations, and concluded that there was no possibility of tutoring nor was the deceased mentally unfit to make the dying declarations.
In that view of the matter it reversed the order of acquittal, convicted the appellant of murder and sentenced her to life imprisonment.
Mr. Mehta, the learned counsel for the appellant, has taken us through the entire evidence as well the case law on which the learned trial Judge has based his order of acquittal.
He also invited our attention to a number of decisions of this Court in support of his contention that the High Court ought not to have interfered with the order of acquittal.
According to him the High Court should have given due regard to the appreciation of evidence by the trial court and should not have lightly brushed aside its conclusion on facts.
Counsel submitted that an order of acquittal strengthens the presumption of innocence which should not be dislodged unless the appellate court comes to the conclusion that the trial court has committed a manifest error of judgement resulting in miscarriage of justice.
His submission was that this Court should approach the question by inquiring if the High Court had adhered to the well settled principle that if two views are possible and the trial court accepts one view which the High Court considers less probable, the High Court will not reverse the trial court.
Lastly he 94 contented that although a conviction can be based solely on a dying declaration, courts should be slow to accept a dying declaration as true where it is not recorded in question and answer from and is cryptic in nature, since it is a piece of evidence not tested by cross examination.
The weight to be attached to a dying declaration must largely depend on whether or not the deceased was a fit state of mind to make it and since in the present case the trial court had ruled against the prosecution, the High Court was not justified inreversing the trial court, more so because if was doubtful if she could speak at all having regard to the burns on her lips and tongue.
In support of his submission he cited a host of decisions of this Court but it is unnecessary to refer to them as on principle there can be no dispute with the propositions of law stated by the appellant 's counsel.
We have given given our anxious considerations to these submissions but we are afraid we cannot accede to them because in the facts of the present case we are satisfied that the High Court would have failed in its duty if it had not reversed the decision of the trial court.
The evidence on record shows that the marriage had taken place hardly three months before the incident.
Even on the appellant 's own showing her relations with the deceased were not strained.
The appellant is the only sister of the husband of the deceased.
The word 'nanad ' means the husband 's sister.
Therefore, when the deceased told PW 5 Dr. Solanki that her 'nanad ' had set her on the fire, she meant the appellant and none else.
The evidence of nurse PW 4 Pankajben corroborates the evidence of Dr. Solanki.
Both these witness have deposed that the deceased was in a fit state of mind and was able to speak, elbeit with difficulty.
If there was any doubt on the question of identity it was cleared by PW 2, Dr. Suresh Ambvani to whom the deceased gave the name of her tormentor as padma.
The learned Sessions Judge, also came to the conclusion that notwithstanding the extensive burns the patient was conscious and was able to speak at the time she made the dying declarations.
Her condition soon deteriorated and by 2.45 p.m. she was not in a position to make any statement to the police as recorded by PW 2 Dr. Ambvani on the police 'yadi '.
Dr. Ambvani had,however, recorded what the patient had told him.
Therefore, besides the oral evidence of two medical men there are contemporaneous documents which go to show that the deceased made the statements in question.
Even the learned Sessions Judge did not doubt the correctness of truth of what both the medical men deposed but in his view the deceased was not mentally fit when she named the appellant.
It is well settled by a catena of cases that a dying declaration is 95 admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable.
While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime.
It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated.
In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish.
If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated.
A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable.
In the present case there can be no doubt that the deceased had an opportunity to see her tormentor as the incident happened in broad day light.
Since the incident occurred in the early hours of the day there was the possibility of a family member being involved.
There being no dispute that death was homicidal, the question is who did it? As no relative from the side of her parents was present, the possibility of tutoring by them must be ruled out.
The theory that her husband prompted her to name the appellant because his relations with the appellant were strained must be brushed aside as devoid of merit.
Except the appellant 's statement in this behalf, there is no other evidence no such foundation was laid in the cross examination of the investigating officers.
Since it is conceded that the appellant 's relations with the deceased were not bad, it is difficult to understand why the latter should falsely involved her, assuming her husband did prompt her, and allow her real tormentor to escape.
Since the appellant is the only sister of her husband, there remains no doubt about the identity of the 'nanad ' (husband 's sister or sister in law).
Doubt, if any, is removed by PW 2 Dr. Ambvani 's evidence to whom she disclosed the name `Padma '.
Both the medical men were conscious about her condition and, therefore, they would not have attached any importance to her statement if they had any doubt about her mental capacity.
Even Mr. Mehta had to concede that he was not in a position to say that the two medical men were motivated in giving false evidence.
96 Mr. Mehta, however,contented that apart from the fact that the appellant had 90% burns, her pulse rate was high and she had respiratory difficulty, the evidence of PW 5 Dr. Solanki shows that he had prescribed morphine injection and, therefore, by the time PW 2 Dr. Ambvani examined her she could not be in a conscious state to make the dying declaration to him.
In this connection he relied on the statement of PW 4 Pankajben who stated that she had given the treatment prescribed by Dr. Solanki.
Mr. Mehta, however, overlooks PW 4 Pankajben 's categorical statement that she had not given any injection to the victim.
On the other hand the other nurse PW 2 Rukshmaniben deposed that she had given the morphine injection intravenously after Dr. Ambvani left the ward.
Therefore, the submission has no merit.
Mr. Mehta then submitted that having regard to the fact that the victim had 90% burns and her general condition was poor, it would be hazardous to hold that her statements to the two medical men were true.
He also argued that she had burns on her lips and her tongue was swollen making it doubtful if she could talk.
We do not think there is any merit in this submission.
In Suresh vs State of M.P., this Court was required to deal with a more or less similar situation.
In that case the victim had sustained 100% burns of the second degree and her dying declaration was recorded by Dr. Bhargava in the hospital.
Dr. Bhargava had deposed that the victim was in a fit state of health.
The evidence, however,disclosed that while Dr. Bhargave was recording her statement the victim had started going into a coma.
Yet this Court accepted the dying declaration made by the victim to Dr. Bhargava.
Therefore, the mere fact that she had suffered 90% burns and her general condition was poor is no reason to discard the testimony of both of medical men when they say that she was in a fit state of mind and was able to make the dying declaration in question.
Lastly, the contention that since the dying declarations were not in question and answer from they must be discarded altogether is not correct.
Dr. Solanki had merely asked the patient how she was burnt to record the history of her case.
The victim answered by stating that her 'nanad ' (husband ' sister) had burnt her.
Dr. Ambvani too had merely tried to ascertain from the deceased how she was burnt and it was only after she stated that she was burnt by her sister in law that he tried to find the name of her tormentor.
In these circumstances we do not think that the failure on the part of the medical men to record her statement in question and answer from can in any manner affect the probative value to be attached to their evidence.
In Rabi Chandra Padhan & Ors.
vs State of Orissa, at p. 244 this Court 97 merely stated that dying declaration should preferably be in the question and answer form.
That would be so when the statement of the victim is sought to be recorded as a dying declaration.
But in the instant case as seen from the evidence of both the medical men they merely questioned her for the limited purpose of stating they history of the case.
Even otherwise having regard to her condition they could not have questioned her in detail.
In such circumstances the fact of the statements being cryptic is understandable.
See Bankey Lal vs State of U.P. We, therefore, do not think that it would be reasonable to discard the prosecution evidence in regard to the dying declaration on such slender grounds.
In the result we see no merit in this appeal and dismiss the same.
The appellant will submit to her bail within fifteen days from today.
Bail bond will stand canceled.
R.P. Appeal dismissed.
|
The wife of appellant 's brother was found aflame in the early hours of 11.6.1975 in the kitchen of her husband 's house.
She was taken to hospital and admitted to Burns ward where the doctor in charge (PW 5) examined her and while taking her case history enquired of the injured as to what happened, to which she replied, "my nanad (sister in law) burnt me".
She had suffered 90% of burns.
The nurse (PW 4) was instructed to give treatment.
Later another doctor (PW 2) attended on her.
When he asked her as to how she had received the burns, she told him that her husband 's sister had burnt her.
In reply to his further query, she named the appellant as her tormentor.
He made a note of this information by the victim on the police `yadi ' which was sent to him to ascertain if the victim was in a fit condition to make a dying declaration.
As her condition deteriorated, the victim was not in a position to make any statement to the police.
The investigation culminated in the appellant being charged under section 302, I.P.C. for causing the murder of her brother 's wife by pouring kerosene on her person and setting her aflame.
On trial, the Sessions Court held that the deceased had not the requisite mental condition so as to make an acceptable dying declaration, and that her husband was very much near the cot, and hence possibility of tutoring the deceased could not be ruled out.
Giving the benefit of doubt it acquitted the appellant.
89 In the State 's appeal against acquittal, a Division Bench of the High Court re appreciated the prosecution evidence and after closely examining the reasons given by the Sessions court, held them thoroughly untenable and not supported by the evidence on record.
It set aside the order of acquittal, convicted the accused of murder and sentenced her to imprisonment for life.
The appellant accused appealed to this Court challenging in aforesaid conviction and sentence on the ground that the High Court erred in law in holding the view taken by the trial court as less probable.
It was contended that the deceased having suffered 90% of burns and her general condition being poor, she was not in a fit mental state to make the dying declaration; that the dying declarations were not in question and answer form; and that the possibility of tutoring the deceased could not be ruled out.
Dismissing the appeal, this Court, HELD: 1.
A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable.
While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premiss that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime.
It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated.
[94H; 95A B] 2.1 Being an independent piece of evidence like any other piece of evidence Neither extra strong nor weak a dying declaration can be acted upon without corroboration if it is found to be otherwise true and reliable, and in order to form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of indentifying the person implicated and is thoroughly reliable and free from blemish.[95d; 95B] 2.2 If it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated.
[95C] 3.1 In the instant case, since the incident occurred in the early hours of the day, there was possibility of a family member being involved; and as the incident took place in broad day light, there could be no doubt that the deceased had an opportunity to see her tormentor.
The deceased told the doctor (PW 5) that her `nanad ' had set her on fire.
Since the appellant was the only sister of her husband, there remained no doubt about the identity of the `nanad ' (husband 's sister or sister in law).
Doubt, if any, was removed by another doctor 's evidence (PW 2) to whom she disclosed the name of the appellant.
[95D, 94D, 95F G] 3.2 The mere fact that the deceased had suffered 90% burns and her general condition was poor, was no reason to discard the testimony of both the medical men when they said that she was in a fit state of mind and was able to make the dying declarations in question.
Both the doctors were conscious of her condition and would not have attached any importance to her statement if they had any doubt about her mental capacity.
Besides the oral evidence of the two medical men, there were contemporaneous documents showing that the deceased made the statements in question.
[96E; 95G; 94G] Suresh vs State of M.P., , relied on.
3.3 The doctors (PW 2 and PW 5) merely questioned the victim for the limited purpose of recording the case history.
Having regard to her condition, they could not have questioned her in detail.
In the circumstances, the fact of the statements being cryptic was understandable; and the failure on their part to record her statements in question and answer form could in no manner affect the probative value to be attached to their evidence.
[97A B; 96G] Bankey lal vs State of U.P., , relied on and Rabi Chandra Padhan & Ors.
vs State of Orissa, , held inapplicable.
Being conscious of the fact that while dealing with an acquittal appeal, the court should give due weight to the views of the trial court on the question of credibility of the prosecution evidence and should not lightly interfere with its appreciation, the High Court carefully scrutinised the evidence, particularly in regard to the two oral dying declarations, and rightly concluded that there was no possibility of tutoring nor was the deceased mentally unfit to make the said dying declarations.
[93C E] 91 Balak Ram & Anr.
vs State of U.P., ; and Lallubhai vs State of Gujrat, , referred to.
|
Civil Appeal No. 1309 of 1986.
From the Judgment and Order dated 8.8.1985 of the Punjab and Haryana High Court in Regular Second Appeal No. 307 of 1985.
A.B. Rohtagi, Ranbir Singh Yadav and H.M. Singh for the Appellant.
75 A.G. Prasad and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by RAY, J.
This appeal on special leave is against the judgment and order passed by the High Court of Punjab & Haryana in Regular Second Appeal No. 307 of 1985 whereby the High Court upheld the order of termination of services of services of the appellant made on November 17, 1980 passed by the respondent No. 2, the Directer of Food and Supplies and Deputy Secretary to Government of Haryana, Chandigarh.
The salient facts that gave rise to the instant appeal are as follows: The appellant we appointed as Sub Inspector, Food and Supplies in the Department of Food and Supplies by the Respondent No.2 by order dated April 13, 1975 on and hoc basis against the ex servicemen quota.
As per the service rules the terms and conditions of the said appointment are as hereunder: "(i) The post is purely temporary.
Your appointment is purely on ad hoc basis and shall not exceed six months.
Your services are liable to be terminated at any time during this period without any notice and without assigning any reason.
Your services are also liable to be terminated at any time without notice on arrival of regular candidates from the Haryana Subordinate Services Selection Board.
" The appellant had been continuing in the said post of Sub Inspector without any break till November 17, 1980 i.e. the date of termination of his services.
The appellant, however, was served with an order of suspension made by the Respondent No. 2 on April 15, 1980 in view of the criminal proceedings pending against the appellant u/s 420 of the Indian Penal Code during the pendency of which the order of termination was made on November 17, 1980.
The said criminal proceeding being Criminal Case No. 1413 of 1981 was decided on October 21, 1981 wherein he has been acquitted of the said charge.
The Additional Chief Judicial Magistrate, Narnual had found that: ". .
Babu Ram accused was not present at the spot and he had no role to play in the distribution of the cement.
The Appellant could not point out even a single factor from the file by which the participation of this accused can be said to 76 have been proved by the prosecution.
As such, accused, Babu Ram cannot be held guilty of the offence charged and he is acquitted of the same.
" The plaintiff appellant immediately on receiving the order of termination after giving the requisite notice brought an action being Civil Suit No.453 of 1981 in the court of Senior Sub Judge, Narnual praying for a declaration to the effect that the order of suspension dated 15.4.1980 and the order of termination dated 17.11.1980 passed by the respondent No.2 were illegal, wrong, arbitrary and without jurisdiction and the appellant is entitled to reinstatement with effect from the date of his suspension and so further entitled to be regularised and to all the benefits of the service.
It had been stated in the pleadings of the appellant that a notification dated 1st January, 1980 issued by the Chief Secretary to the Government of Haryana addressed to all the Head of the Departments vide memo No. G.S.R./Const./ article 309/80 stating that such ad hoc employees who hold the class III posts for a minimum period of two years on 31.12.1979 are to be regularised if they fulfill the following conditions: (a) Only such ad hoc employees as have completed a minimum of two years service on 31.12.1979 should be made regular.
However, break in service rendered on ad hoc basis upto a period of one month may be condoned but break accruing because the concerned employee had left service of his own volition or where the ad hoc appointment was against a post/vacancy for which no regular recruitment was required/intended to be made, i.e. leave arrangements or filling up of other short time vacancies, may not be condoned.
(b) Only such ad hoc employees as have been recruited through the Employment Exchange should be made regular.
(c) The work and conduct of the ad hoc employees proposed to be regularised should be of an overall good category.
The plaintiff appellant pleaded that he having put in the minimum period of two years of service on 31.12.1979 became entitled to have his service regularised in view of the said Notification.
He further pleaded that the alleged order of termination was in fact an order of dismissal and so it amounts to punishment and the same being penal in nature is null and void because it contravened the provisions of Constitution of India.
The Senior Sub Judge, Narnaul after hearing the 77 parties held that as the petitioner appellant was acquitted of the said offence, the authorities should have revoked the suspension order and have paid the pay for the period for which the appellant remained under suspension.
The Court further held that the appellant will be entitled to all the benefits of his service.
Against this judgement and decree, an appeal was filed being C.A. No. 129 of 1983 in the Court of Addl.
District Judge, Narnaul by the State.
The Addl.
District Judge by his judgement dated 18.10.1984 affirmed the judgement and decree of the learned Sub Judge holding that no enquiry was conducted before termination of the service of the appellant.
The Addl.
District Judge also held that: ". the plaintiff had completed two years of service and according to executive instructions his services were bound to be regularised.
Reasonable opportunity to defend was not given to the plaintiff before termination of his services.
Order of termination of services was merely a camouflage for an order of dismissal for misconduct.
He was still under suspension when he was terminated.
All these facts lead only to one conclusion that the impugned order of termination of the services of the plaintiff is bad in law . " Against this judgement and order R.S.A. No. 307 of 1985 was filed by the said respondents in the High Court of Punjab and Haryana at Chandigarh.
The High Curt allowed the appeal on setting aside the judgement and decree of the courts below holding that the appellant was not entitled to be regularised automatically unless he fulfilled all the conditions given in the Notification.
It was further held that when the case of the appellant came up for regularisation the Department found that the appellant 's work and conduct was not of the required standard so as to justify his regularisation and consequently his services were not regularised.
It was further held that since the appellant was ad hoc employee therefore, the Department instead of waiting for the result of the criminal proceedings thought it fit under the circumstances to dispense with the services of the appellant in accordance with the terms of his appointment.
This judgement is under challenge in this appeal.
The pivotal question that poses itself for consideration before this Court is firstly whether during the period of suspension in view of the criminal proceeding which ultimately ended with the acquittal, an order of termi 78 nation can be made against the appellant by the respondent No.2 terminating his ad hoc services without reinstating him as he was acquitted from the charge u/s 420 I.P.C. and secondly whether the impugned order of termination from his service can be made straight away without reinstating him in the service after he earned acquittal in the criminal case and thereafter without initiating any proceeding for termination of his service as the impugned order of termination was of penal nature having civil consequences.
It has also to be considered in this connection that the respondent No.2 has also not considered the case of the appellant for regularisation of his services even though he had completed two years of service as on 31.12.1979 fulfilling all the requisite terms and conditions mentioned in the said Notification.
The order of suspension made by the respondent No.2 is admittedly on the sole ground that criminal proceeding was pending against the appellant.
The order of termination had been made illegally during the pendency of the order of suspension and also during the pendency of the criminal proceeding which ultimately ended with the acquittal of the appellant.
It is the settled position in law that the appellant who was suspended on the ground of pendency of criminal proceeding against him, on being acquitted of the criminal charge is entitled to be reinstated in service.
His acquittal from the criminal charge does not debar the disciplinary authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the appellant pass an order of termination on the basis of the terms and conditions of the order of his appointment.
Furthermore as the appellant whose name was sent through Employment Exchange and who was appointed and has completed two years service on 31.12.1979 is entitled to be considered for regularisation in the post Sub Inspector, Food and Supplies.
The High Court had observed that: ". .
In these circumstances, when his case came up for regularisation, the Department found that the plaintiff 's work and conduct was not of the required standard so as to justify his regularisation and consequently his services were not regularised.
" This finding of the High Court is totally baseless in as much as the counsel for the said respondent could not produce any order or documentary evidence to show that the respondents considered the case of the appellant for the purpose of regularisation in accordance with the Notification dated 1st January, 1980.
As such the finding of the High Court is wholly bad and illegal.
The other finding of the High Court that the acquittal of the appellant by the criminal court was of no consequence as his services were terminated before the order of acquittal was made because the appellant was no more in service is also 79 against the well settled legal position.
It has also to be borne in mind that under the Notification dated 1st January, 1980 issued by the Government, the appellant having fulfilled the condition of two years of service is entitled to be considered by the Government for regularisation of his service in accordance with the said executive instructions issued by the Government.
As we have said herein before that there is nothing on record to show that the Government has ever considered the case of the appellant for regularisation of his service in the light of the instructions contained in the said Notification dated 1st January, 1980, the impugned order of termination of service made by the Government is illegal and arbitrary and so it is liable to be quashed and set aside.
Moreover, from the sequences of facts of his case the inference is irresistible that the impugned order of termination of the service of the appellant is of penal nature having civil consequence.
It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court that though the order is innocuous on the face of it still then the Court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside.
Reference may be made in this connection to the decision of this Court in Smt.
Rajinder Kaur vs State of Punjab and Another, in which one of us is a party.
It has been held that: "The impugned order of discharge though stated to be made in accordance with the provisions of Rule 12.21 of the Punjab Police Rules, 1934, was really made on the basis of the misconduct as found on enquiry into the allegation behind her back.
Though couched in innocuous terms, the order was merely a camouflage for an order of dismissal from service on the ground of misconduct.
This order had been made without serving the appellant any charge sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order f dismissal from service and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross examine the witness examined.
The order was thus, made in total contravention of the provisions of Article 311(2) and was therefore, liable to be quashed and set aside.
" This case relied on the observations made by this Court in the case of Anoop Jaiswal vs Government of India, ; 80 wherein it has been observed that: ".
Where the form of order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order.
If the court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee".
Similar observation has been made by this Court in the case of Hardeep Singh vs State of Haryana and Ors.
, It has been held in this case as under: "In the instant case, it is clear and evident from the averments made in paragraph 3, sub para (i) to (iii) and paragraph (v) of the counter affidavit that the impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of petitioner.
There is no doubt the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24 (Ix)(b) of the Punjab Police Rules, 1984. " In the premises aforesaid, we are constrained to hold that the judgement rendered by the High Court is wholly illegal and unwarranted and as such we quash and set aside the same and affirm the judgement of the courts below.
We direct that the appellant be reinstated in the service immediately and be paid all his emoluments i.e. pay and allowances from the date of the order of his suspension i.e. 15.4.1980 till the date of reinstatement into service minus the suspension allowance that had been received by the appellant during the period of his suspension (if any).
The respondents are at liberty to consider the case of the appellant for regularisation in the light of the norms laid down in the executive instructions issued on 1st January,1980 by Notification No. G.S.R./Const./Art.
309/80.
The appeal is allowed.
There will be no order as to costs in the facts the circumstances of the case.
Y.Lal Appeal allowed.
|
The appellant was appointed an Sub Inspector, food & Supplies by respondent No. 2 on 13.4.1975 on ad hoc basis against service man quota; the post being purely temporary liable to be terminated without notice and without assigning any reasons or on arrival of a regular candidate.
The appellant continued in service on that post till November 17, 1980, when his services were terminated.
Prior to the termination of his services he was placed under suspension on April 15, 1980 in view of the criminal proceedings under Section 420, IPC pending against him and before the culmination of criminal proceedings, his services were terminated by order dated November 17, 1980, as aforesaid.
Criminal case against the appellant was decided on October 21, 1981 wherein he was acquitted of the charge.
The appellant on receiving the order of termination of his services filed Civil Suit 453 of 1981 in the court of Senior Sub Judge, narnaul praying for a declaration that the orders of suspension as also termination were illegal, wrong, arbitrary and without jurisdiction and that the appellant was entitled to reinstatement and regularisation of his service under the Government notification dated 1.1.1980 issued by the Chief Secretary to the Government of Haryana authorising regularisation of such ad hoc employees who held the Class III posts for a minimum period of two years.
According to the appellant his case was covered by the said notification and as such he was entitled to all the benefits of service.
The Senior Sub Judge held that as the appellant was acquitted of the offence, the authorities should have revoked the suspension order and have paid the pay for the period for which the appellant remained under suspension and thus allowed to the appellant all the benefits.
An appeal was taken by the respondents to the Addl.
District Judge who affirmed the order of the trial court holding that no enquiry was conducted before termination of the service of the appellant.
Against the order of the Addl.
District Judge, the respondents preferred an appeal 74 before the High Court and the High Court allowed the appeal holding that the appellant was not entitled to be regularised automatically unless he fulfilled all the conditions given in the notification.
It was also held that the case of the appellant was considered for regularisation by the Department but the same was not found suitable; the services of the appellant were terminated in accordance with the terms of his appointment.
The appellant has filed this appeal against that order in this court after obtaining special leave.
Allowing the appeal, this Court, HELD: The order of suspension made by the respondent No. 2 is admittedly on the sole ground that criminal proceeding was pending against the appellant.
The order of termination had been made illegally during the pendency of the order of suspension and also during the pendency of the criminal proceeding which ultimately ended with the acquittal of the appellant.
The settle position in law is that the appellant who was suspended on the ground of pendency of criminal proceeding against him, on being acquitted of the criminal charge is entitled to be reinstated in service.
His acquittal from the criminal charge does not debar the disciplinary authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the appellant pass an order of termination on the basis of the terms and conditions of the order of his appointment.
[78C E] As the appellant whose name was sent through Employment Exchange and who was appointed and has completed two years service on 31.12.1979, he is entitled to be considered for regularisation in the post of Sub Inspector, Food and Supplies.
[78E] Smt.
Rajinder Kaur vs State of Punjab and Anr.
, ; ; Anoop Jaiswal vs Government of India, ; ; Hardeep Singh vs State of Haryana and Ors.,[1987] 4 S.L.R. 576, referred to.
|
ivil Appeal No. 5020 of 1989.
From the Judgment and Order dated 7.12.1989 of the Bombay High Court in W.P. No. 5021 of 1989.
Dr. Y.S. Chitale, V.N. Ganpule, B. Rastogi, Ms. Suman and Ms. Punam Kumari for the Appellant.
V.M. Tarkunde, Ejaz Iqbal, H.S. Anand, R.F. Nariman and H.D. Adhar for the Respondents.
54 The Judgment of the Court was delivered by AHMADI, J.
This is a tenant 's appeal by special leave directed against the judgment of the High Court of Maharashtra at Bombay whereby it confirmed the eviction order passed by the 6th Additional District Judge, Pune, in Civil Appeal No. 662 of 1988 in reversal of the order of dismissal of the suit passed by the Learned Additional Judge of the Court of Small Causes, Pune, in Civil Suit No. 348/85 on 30th April, 1988.
The brief facts giving rise to this appeal are as under: On 5th February, 1976 the appellant executed a lease agreement in respect of a part of the ground floor of property bearing City Survey No. 1205/2/9 situate at Shivaji nagar, Pune city, more particularly described in paragraph 1 of the said agreement.
The said premises were taken on rent for the purposes of restaurant business on monthly rental basis.
By clause 3 of the agreement the appellant undertook to pay a total rent of Rs. 1,000 per month for the demised premises (Rs.900 for the hotel portion and Rs. 100 for the garage); the said rent being payable every month in advance.
Clause 5 of the agreement prohibited sub letting of the premises or parting with the possession thereof in any other manner.
As the appellant committed a default in the payment of rent from June, 1983 to December, 1984 in respect of hotel portion and from November, 1979 to December, 1984 in respect of the garage, the first respondent despatched a notice dated 31st December, 1984 terminating the appellant 's tenancy as required by Section 106 of the Transfer of Property Act.
The appellant failed to respond to the said notice and neglected to pay the amount of arrears of rent claimed therein within one month from the date of receipt of the notice.
Consequently, the first respondent filed the suit which has given rise to this appeal on 26th February, 1985, being Civil Suit No. 348 of 1985, seeking eviction on four grounds, namely, (i) the tenant was in arrears of rent for more than six months and had failed and neglected to pay the amount due within one month from the date of receipt of the eviction notice, (ii) the tenant had raised a permanent structure in the suit premises in breach of section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Act '), (iii) the tenant was guilty of causing nuisance and annoyance to the neighbors and (iv) the tenant had sub let the premises to second respondent without his consent.
The suit was contested by the appellant tenant by his written statement Exh. 25 and the supplementary written statements Exhs.
56 and 60 filed after the amendments in the plaint.
The second respon 55 dent, the alleged sub tenant, adopted the written statement of the appellant by his purshis Exh. 30.
During the pendenacy of the suit Section 12(3) of the Act was amended by Section 25 of the Amendment Act 18 of 1987 whereby clauses (a) and (b) of sub section 3 of section 12 were deleted and instead a new sub section 3 was substituted which restricted the court 's right to pass a decree for eviction on the ground of arrears o standard rent and permitted increases, if on the first date of the hearing of the suit or on such other date as the Court may fix, the tenant paid or tendered in court the standard rent and permitted increase then due together with simple interest on the amount of arrears at the rate of 9% per annum and thereafter continued to pay or tender in court regularly such standard rent and permitted increases till the final decision of the suit and also paid the cost of the suit as directed by the court.
The appellant contended that the said amendment had retrospective effect and he was entitled to the benefit thereof.
In the alternative he also contended that he had paid the rent to the first respondent but the latter had failed to issue rent receipts.
He also questioned the validity of the notice terminating his tenancy.
He denied the allegation that he had sub let the premises or had aparted with the possession thereof in favour of the second respondent or that he was guilty of causing nuisance and annoyance to the neighbours.
The allegation that he had raised a structure of a permanent nature in the hotel premises without the permission of first respondent was also disputed.
He, therefore, contended that the suit was liable to fail.
The learned Additional Small Causes Judge, Pune raised issues at Exh. 36 and came to the conclusion that the agreed rent for the hotel and the garage was Rs. 900 per month and in addition thereto the tenant had agreed to pay Rs. 120 per month for education cess and other taxes.
He also concluded that the tenant had failed to pay the rent in respect of the garage from November, 1979 and in respect of hotel from June, 1983.
Since the tenant had failed to pay or deposit the arrears claimed by the eviction notice dated 31.12.1984 within one month from the receipt thereof, the Court held he was liable to be evicted under section 12(3)(a) of the Act but in view of the substituted Section 12(3), he was entitled to protection as he had paid the entire arrears together with interest and costs before the passing of the decree.
He also held that there was no reliable evidence to show that the tenant had sub let the premises or had made any alteration of a permanent nature without the consent of the first respondent.
The allegation of nuisance and annoyance was held not proved on facts and was even otherwise found to relate to a post suit incident of 1986.
on 56 these findings the learned Trial Judge dismissed the suit with no order as to costs.
The first respondent, felling aggrieved by the order of dismissal of his suit, preferred an appeal being Civil Appeal No. 662/88.
The appellate court reversed the decree of the trial court holding that the rent was payable by the month and there being no dispute regarding standard rent and permitted increases and the tenant having failed to pay the arrears within one month from the date of receipt of a valid eviction notice dated 31st December, 1984, he was liable to be evicted under section 12(3)(a) of the Act since the amended section 12(3) introduced by Amending Act 18 of 1987 was prospective in nature.
It also took the view that since the premises was sub let by the appellant to the second respondent on a rental of Rs. 2,000 per month, the former was guilty of profiteering.
So far as the other two contentions regarding raising of a permanent structure and allegation of nuisance and annoyance were concerned, the appellate court concurred with the findings recorded by the trial court.
In this view that the appellate court took it allowed the appeal and ordered both the tenant and sub tenant to deliver vacant possession of the demised premises within two months from the date of the order with costs throughout.
The appellant tenant, feeling aggrieved by the order of eviction passed by the learned 6th Additional District Judge, Pune, preferred a writ petition No. 5021 of 1989 to the High Court.
The writ petition was rejected at the admission stage by a short speaking order.
The High Court observed that the eviction notice was legal and proper and the lower appellate court was right in concluding that the appellant had sub let the premises to the second respondent as alleged.
The request for extention of time to vacate was rejected as the tenant was unwilling to file an undertaking in the usual form.
Feeling aggrieved by the said order the tenant has preferred the present appeal after obtaining special leave.
The standard rent in respect of the demised premises has been found by all the three courts to be Rs. 900 per month (Rs. 750 in respect of the hotel premises and Rs. 150 in respect of the garage).
In addition thereto the tenant had undertaken to pay a lump sum of Rs. 120 per month by way of education cess and other taxes in respect of the demised premises.
Thus the tenant was required to pay a consolidated sum of Rs. 1020 per months as rent to the first respondent.
By 31st December, 1984 the appellant tenant had failed to pay the rent in respect of the hotel premises from 1st June, 1983 and in respect of the 57 garage area from 1st November, 1979; thus the arrears of rent in respect of hotel premises came to Rs.16,530 and in respect of the garage premises Rs.9,300 aggregating to Rs.25,830.
The first respondent, therefore, served the appellant with a notice terminating the tenancy by the end of 31st January, 1985 and called upon the appellant to pay the arrears of rent and vacate and handover peaceful possession of the demised premises by that date.
Even after the receipt of this notice, the appellant neither paid the amount due within one month of the receipt of the notice nor filed any application for fixation of standard rent and/or the permitted increases under section 11 of the Act.
On the failure of the appellant to comply with the requirement of the eviction notice, the first respondent filed a suit for eviction on 26th February, 1985 on the grounds stated earlier.
In the said eviction suit the first respondent claimed the arrears of rent upto the end of December, 1984 as set out in the eviction notice and damages of Rs. 1020 for month of January, 1985 together with Rs. 250 by way of notice charges.
The total claim made came to Rs.27,100.
The appellate Court and the High Court came to the conclusion that the newly substituted section 12(3) had no application and the case was governed by section 12(3)(a) as it stood before the amendment.
Dr. Chattel, the learned counsel for the appellant frankly conceded that in view of the decision of this Court in Arjun Khiamal Makhijani vs Jamnadas C. Tuliani & Ors., , the case would be governed by section 12(3) as it stood before its amendment by Amending Act 18 of 1987, since the substituted section 12(3) was found to be prospective in nature.
This Court in paragraph 14 of the judgment at page 624 repelled the submission that it was retrospective in operation in the following words: "In our opinion, the tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inasmuch as on a plain reading of the sub section it is not possible to give it a retrospective operation." Dr. Chitale was, therefore, justified in submitting that the decision of this case must rest on the question whether it attracted section 12(3)(a) or section 12(3)(b) as it stood prior to the amendment.
According to Dr. Chitale since the tenant was obliged to pay the education cess and other taxes by way of permitted increases which were payable at the end of the year, the case would not attract section 12(3)(a) as a part of the rent became payable annually and not monthly.
He further contended that there was nothing on the record to show that the landlord 58 had paid the amount of education cess and other taxes and unless payment of the taxes to the local authority was established the land lord had no right to claim the same from the tenant.
According to him, the landlord 's right to recover the taxes arises not at the end of the financial year but on the date on which he makes the payment to the local authority.
Dr. Chitale, therefore, submitted that the case attracted section 12(3)(b) and when the tenant deposited a sum of Rs.37,740 on 18th January, 1986 before the issues were settled on 13th February, 1986 he could be said to have made the full payment of the rent then due and therefore the courts below were not justified in granting an eviction decree for arrears of rent under section 12(3)(a) of the Act.
In support of his contention he invited our attention to four decisions of the Gujarat High Court, namely,Pancha Mohanlal Ishwardas vs Maheshwari Mills Ltd., ; Prakash Surya vs Rasiklal Ishverlal Mehta, ; Vanlila Vadilal Shah vs
Mahendrakumar J. Shah, AIR 1975 Guj. 163 and Vishwambar Hemandas vs Narendra Jethalal Gajjar, AIR 1986 Guj. 153.
He also placed reliance o a Bombay High Court decision in Muktabai Gangadas Kadam vs Muktabai Laxman Palwankar, and the decision of this Court in Bombay Municipal Corporation vs Life Insurance Corporation Of India, Bombay; , On the question of sub letting he stated that the Trial Court had rightly pointed out that the evidence falls far short of proof of sub tenancy and the Appellate Court as well as the High Court were in error in reversing that view of the Trial Court.
Mr. Tarkunde, the learned Advocate for the landlord, on the other hand submitted that once the four ingredients of section 12(3)(a) were shown to be satisfied, the Court had no alternative but to decree the suit.
According to him, the standard rent in respect of the demised premises was shown to be Rs. 900 per month and in addition thereto the tenant had agreed to pay a quantified sum of Rs. 120 per month by way of education cess and other taxes.
It was proved as a fact that the tenant had failed to pay the rent in respect of the garage from 1st November, 1979 and the rent in respect of the hotel from 1st June,1983.
The tenant had also failed to pay the tax amount at the rate of Rs. 120 per month from 1st June, 1983.
Since there was no dispute in regard to standard rent or permitted increases in this case, the tenant was under an obligation to pay the entire amount due from him by way of rent and taxes within one month of the receipt of the eviction notice dated 31st December, 1984.
Under section 12(1) of the Act a landlord is not entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of standard 59 rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, insofar as they are consistent with the provisions of the Act.
Section 12(2) places a restriction on the landlord 's right to sue his tenant for recovery of possession on the ground of non payment of the standard rent and/or permitted increases due from him.
According to that section no suit for recovery of possession can be instituted on the aforesaid ground until the expiration of one month next after notice in writing of the demand of the standard rent and/or permitted increases has been served upon the tenant in the manner set out in section 106 of the Transfer of Property Act.
To comply with this requirement the landlord had issued a notice on 31st December, 1984 calling upon the tenant to pay the standard rent which was in arrears along with the quantified tax amount in arrears upto that date as detailed in the notice.
The tenancy was terminated w.e.f. 31st January, 1985.
Admittedly, the tenant did not respond to this notice nor did he pay or deposit the amount of arrears as claimed in the notice within one month of the receipt thereof.
He also did not file any application for fixation of standard rent and/or permitted increases under section 11 of the Act.
There was, therefore, no question of the Court specifying the amount of interim rent or permitted increases under sub section (3) of Section 11 during the pendency of such an application.
Mr. Tarkunde, therefore, submitted that the case was clearly governed by the provisions of section 12(3)(a) since indisputably the rent inclusive of the quantified tax amount was payable by the month; there was no dispute as regards the standard rent/permitted increases: the tenant was found to be in arrears of rent for more than six months and he had failed to pay or deposit the rent within one month after the receipt of the notice under section 12(2) of the Act.
According to Mr. Tarkunde the submission that because the education cess was payable by the year, a part of the rent was not payable by the month and therefore section 12(3)(a) had no application is clearly misconceived for the simple reason that in the present case the landlord as well as the tenant had by agreement quantified the amount of education cess and other taxes at Rs.120 per month and had not left the determination of the amount to fluctuations in the tax amount from time to time.
Once the quantum in respect of the tax liability is determined by agreement between the parties, the same forms part of the rent and it is not open to contend that notwithstanding the agreement the tax amount remains payable by the year and the tenant is obliged to pay the same only after the landlord has paid the taxes to the local authority.
He, therefore, contended that the case law on which Dr. Chitale had placed reliance can have no application to the special facts and circumstances of the present case.
60 On the second question regarding sub letting Mr. Tarkunde submitted that this Court should not interfere with a finding of fact recorded by the Appellate Court and affirmed by the High Court since it is nobody 's case that the finding is perverse and not based on evidence.
In this connection, he took us through the relevant part of the pleadings and the evidence to support his contention that the conclusion reached by the Appellate Court and the High Court was based on evidence and was not perverse or against the weight of evidence.
He submitted that even if two views are possible this Court in exercise of its powers under Article 136 of the Constitution should refrain from disturbing a possible and plausible view.
We have given our anxious consideration to the rival views propounded by the learned counsel for the appellant tenant as well as the respondent landlord.
On a consideration of the submissions made at the bar and having regard to the provisions of law we are inclined to think that the view taken by the Appellate Court and the High Court does not demand interference.
There is no dispute regarding the standard rent of the demised premises.
under clause 3 of the lease agreement the rent was fixed at Rs. 1,000 per month but subsequently it seems to have been revised by consent of parties to Rs.1,020 per month (Rs. 900 for the demised premises and Rs.120 for education cess and taxes).
The rent was payable 'every month regularly in advance ' under clause 3 of the agreement.
Clause 2 of the agreement states that the premises have been hired for restaurant business 'on monthly rental basis.
It is , therefore, clear from the terms of the lease agreement that the parties intended the tenancy to be a monthly tenancy.
The two clauses of section 12(3) as they stood before the Amendment Act 18 of 1987 provided as under: "12(3)(a).
Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period or one month after notice referred to in sub section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the 61 tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
" Explanation I states that if there is any dispute regarding standard rent or permitted increases the tenant shall be deemed to be ready and willing to pay if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.
Mr. Tarkunde, therefore, argued that even if the case is covered by section 12(3)(b) since the tenant had failed to pay or deposit the full amount due to the landlord as claimed in the eviction notice by the first date of hearing of the suit, i.e. 13th February, 1986, and had also failed to make an application under section 11(3) of the Act, the tenant was not entitled to the protection of that provision also.
Mr. Tarkunde further submitted that the tenant was not regular in the payment of rent and permitted increases for the subsequent period also and there were long intervals between two payments made during the pendency of the litigation.
He, therefore, submitted that even if section 12(3)(b) was invoked the tenant had failed to comply with the requirement of the provision and was, therefore, not entitled to its protection.
Since we are of the opinion that the case is covered by section 12(3)(a) we do not consider it necessary to examine this submission based on the true interpretation of section 12(3)(b) of the Act.
The only submission which Dr. Chitale made for taking the case out of the purview of section 12(3)(a) was that the entire rent was not payable by the month which was the first condition to be satisfied for invoking the said provision.
According to him, since the tenant was bound to pay education cess and other taxes in respect of the demised premises which were payable from year to year, a part of the rent was not payable by the month and therefore the first condition of section 12(3)(a) was not satisfied.
Hence, submitted Dr. Chitale, the case fell within the phrase 'in any other case ', by which clause (b) of section 12(3) opens.
Before we answer the submission of Dr. Chitale it may be advantageous to refer to the relevant provisions of the Maharashtra Education (Cess) Act (Maharashta Act XXVII of 1962).
Section 4(a) of the said Act provides for the levy and collection of tax (cess) on 62 lands and buildings at the rates specified in Schedule A on the annual letting value of such lands or buildings.
The primary responsibility to pay this tax is cast by section 8 on the owner of the land or building irrespective of whether or not he is in actual occupation thereof.
Section 13 next provides that on payment of the amount of the tax in respect of such land or building the owner shall be entitled to receive that amount from the person in actual occupation of such land or building during the period for which the tax was paid.
Under section 15 any person entitled to receive any sum under section 13 is conferred for the recovery thereof the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to receive the same.
It thus seems clear that education cess is a tax and the owner is primarily responsible to pay the same to the local authority and on such payment a right is conferred on him to recover the same from the actual occupant in addition to the standard rent in respect of the demised premises.
Sub section (3) of section 13 in terms states that the recovery of any amount of tax from an occupier under this provision shall not be deemed to be an increase for the purposes of section 7 of the Act.
It is, therefore, obvious that the landlord has a statutory right to recover the amount of education cess paid by him in respect of the demised premises from the tenant occupant and such recovery shall not be an unlawful increase under of section 7 of the Act but would squarely fall within the expression 'permitted increases ' as defined by section 5(7) of the Act.
This statutory right to recover the amount of education cess in respect of the demised premises from the occupant tenant can be quantified by agreement of parties so long as the amount quantified does not exceed the total amount actually paid by the owner by way of education cess.
In the present case, it is nobody 's contention that the amount of Rs. 120 per month payable by way of education cess and other taxes was in excess of the amount actually payable under the relevant statues to the local authority.
The Gujarat High Court has taken a consistent view that where the tenant is obliged under the terms of the tenancy or by virtue of the statute to pay the tax dues to the landlord, since such taxes which form part of the rent are payable annually the case ceases to the governed by section 12(3)(a) and falls within the purview of section 12(3)(b) of the Act.
In Maheshwari Mills Ltd., under the terms of the tenancy the tenant was obliged to pay the municipal taxes and property taxes in respect of the demised premises.
The Court took the view that such payment was by way of rent and since the municipal taxes and property taxes were payable on year to year basis, a part of the rent was admittedly not payable by the month and, therefore, section 12(3)(a) was not attracted.
In Prakash Surya the tenant had agreed to pay the municipal tax 63 and education cess.
The amount payable towards these taxes constituted rent and since the same was payable at the end of the year the Court held that the rent had ceased to be payable by the month and hence section 12(3)(a) had no application.
The same view was reiterated in Vanlila 's case where education cess was payable by the tenant by virtue of section 21 of the Gujarat Education Cess Act, 1962.
Since it constituted a part of the rent, to be precise permitted increase under section 5(7) of the Act, it was held that it took the case outside the scope of section 12(3)(a) of the Act.
In the case of Vishwambhar Hemendas also since the rent was inclusive of taxes the Court held that the case was governed by section 12(3)(b) of the Rent Act.
The Bombay High Court has expressed the same view in Muktabai 's case.
This Court in the Bombay Municipal Corporation 's case held that while section 7 of the Act prohibits increase above the standard rent it does not prohibit the recovery of increase to which a landlord is entitled under the other provisions of the said statue, namely, increase by way of 'permitted increases '.
Education cess is specifically recoverable as rent by virtue of section 13 and as sub section (3) thereof provides that it shall not be treated as increase in rent under section 7 of the Act, there can be no doubt that such an increase falls with the definition of 'permitted increases under section 5(7) of the Act.
It, therefore, seems to be well settled that education cess is a part of 'rent ' within the meaning of the Act and when the same is claimed in addition to the contractual or standard rent in respect of the demised premises it constitutes a permitted increase within the meaning of section 5(7) of the Act and being payable on a year to year basis, the rent ceases to be payable by the month within the meaning of section 12(3)(a) of the Act.
But the question still survives whether the parties can be agreement quantity the said amount and make it payable on a month to month basis provided of course the said amount does not exceed the tax liability of the landlord; if it exceeds that liability it would infringe section 7 of the Act and the excess would not be allowed as permitted increase within the meaning of section 5(7) of the Act.
A right to recover a certain tax amount from the tenant occupant under the provisions of a statute can be waived by the owner or quantified by agreement at a figure not exceeding the total liability under the statue.
If by agreement the amount is so quantified and is made payable by the month not withstanding the owner 's liability to pay the same annually to the local authority, the question is whether is such circumstances the 'rent ' can be said to be payable by the month within the meaning of section 12(3)(a) of the Act? We see no reason why we should take the view that even where the parties mutually agree and quantify the tax amount payable by the tenant to the landlord on monthly basis, the 64 rent should not be taken to be payable by the month within the meaning of section 12(3)(a) of the Act.
A statutory right to recover the tax amount by way of reimbursement can be waived or limited by the holder of such right or the recovery can be regulated in the manner mutually arranged or agreed upon by the concerned parties so also as it is not in violation of statute.
If for convenience and to facilitate payment, the parties by mutual consent work out an arrangement for the enforcement of the owner 's statutory right to recover the tax amount and for discharging the tenant occupant 's statutory obligation to reimburse the owner, we see no reason for refusing to uphold such a contract and if thereunder the parties have agreed to the tenant occupant discharging his liability by a fixed monthly payment not exceeding the tax liability.
The said monthly payment would constitute 'rent ' payable by the month within the meaning of section 12(3) (a) of the Act.
The view expressed by the Gujarat High Court in Vishwambar Hemandas does not, with respect, state the law correctly if it holds that even in cases where the entire tax liability is on the landlord and the tenant had to pay a gross rent of Rs. 19.50 p.m .
the mere recital in the lease that the rent is inclusive of taxes the case outside the purview of section 12(3)(a) of the Act.
We are, therefore, in respectful agreement with the view taken by the Appellate Court and the High Court in that behalf.
We, therefore, hold that as the tenant had failed to comply with the requirement of section 12(3)(a) to seek protection from eviction, the Courts below were justified in ordering his eviction.
In the view that we take on the first point discussed above, it is unnecessary for us to examine the second point regarding sub tenancy.
In the result we see no merit in this appeal and dismiss the same with costs.
We, however, grant time upto 31st December, 1991 to the tenant to vacate.
R.S.S. Appeal dismissed.
|
The appellant tenant executed a lease agreement of the demised premises on a standard rent of Rs. 900 per month.
In addition thereto, the tenant also undertook to pay a lump sum of Rs. 120 per month by way of education cess and other daxes in respect of the premises.
The 1st respondent filed a suit for eviction of the tenant inter alia on the ground that he was in arrear of rent for more than six months and had failed and neglected to pay the amount within one month from the date of receipt of the notice served on him terminating the tenancy and for eviction.
During the pendency of the suit, section 12(3) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 was amended whereby clauses (a) and (b) of sub section 3 of section 12 were deleted and instead a new sub section 3 was substituted which restricted the court 's right to pass a decree of eviction on the ground of arrears of standard rent, etc., if the tenant paid or tendered in Court the arrears as stipulated in the amended clause.
The appellant claimed that the said amendment had retrospective effect and he was entitled to the benefit thereof.
The Trial Court dismissed the suit.
The Court held that since the tenant had failed to pay or deposit the arrears claimed by the eviction notice within one one month from the receipt thereof, he was liable to be evicted under section 12(3)(a) of the Act, but in view of the substituted section 12(3), he was entitled to protection he had paid the entire arrears together with interest and costs before the passing of the decree.
On appeal, the Appellate Court reversed the decree of the trial 52 Court.
The Appellate Court held that the tenant having failed to pay arrears within one month of receipt of a valid notice, he was liable to be evicted under section 12(3)(a) of the Act, since the amended section 12(3) was prospective in nature.
The appellant tenant preferred a writ petition to the High Court, which was dismissed on the ground of sub letting.
Before this Court it was inter alia contended on behalf of the appellant that (i) since the tenant was obliged to pay the education cess and other taxes, by way of permitted increases, which were payable at the end of the year, the case would not attract section 12(3)(a) as a part of the rent became payable annually and not monthly and therefore the case attracted section 12(3)(b); and (ii) the tenant having deposited the arrears, etc., in time, the courts below were justified in granting and eviction decree for arrears of rent under section 12(3)(a).
On the other hand, it was contended on behalf of the respondent that the case was clearly governed by the provisions of section 12(3)(a) since indisputably the rent inclusive of the quantified tax amount was payable by the month.
It was argued that once the quantum in respect of the tax was determined by agreement between the parties, same formed part of the rent and it was not open to contend that notwithstanding the agreement the tax amount remained payable by the year and the tenant was obliged to pay the same only after the landlord had paid the taxes to the local authority.
Dismissing the appeal, this Court, HELD:(1) In view of the decision of this Court, the case would be governed by section 12(3) as it stood before its amendment, since the substituted section 12(3) was found to be prospective in nature.
[57G] Arjun Khaimal Makhijani vs Jamnadas C. Tuliani, , followed.
(2) It is clear from the term of the lease agreement that the parties intended the tenancy to be a monthly tenancy.
[62C] (3) The statutory right to recover the amount of education cess in respect of the demised premises from the occupant/tenant can be quantified by agreement of parties so long as the amount quantified does not exceed the total amount actually paid by the owner by way of education case.
[62E] 53 (4) It seems to be well settled that education cess is a part of 'rent ' within the meaning of the ACt and when the same is claimed addition to the contractual or standard rent in respect of the demised premises it constitutes a permitted increase within the meaning of section 5(7) of the Act and being payable on a year to year basis, the rent ceases to be payable by the month within the meaning of section 12(3)(a) of the Act.
[63D E) Panchal Mohanlal Ishwardas vs Maheshwari Mills Ltd.
,[1962] ; Prakash Surya vs Rasiklal Ishverlal Mehta, ; Vanlila Vadilal Shah vs Mahendrakumar J. Shah, A.I.R. 1975 Guj. 163; Muktabai Gangadas Kadam vs Muktabai Laxman Palwankar,[1969] 71 B.L.R. 752; Bombay Municipal Corporation vs Life Insurance Corporation of India, Bombay, ; (5) If for convenience and to facilitate payment, the parties by mutual consent work out an arrangement for the enforcement of the owner 's statutory right to recover the tax amount and for discharging the tenant occupant 's statutory obligation to reimburse the owner, no reasons are seen for refusing to uphold such a contract and if the parties have agreed thereunder to the tenant occupant discharging his liability by a fixed monthly payment not exceeding the total tax liability, the said monthly payment would constitute 'rent ' payable by the month within the meaning of section 12(3) (a) Act.
[64B.C] Vishwambar Hemandas vs Narendra Jethalal Gajjar, A.I.R. 1986 Guj.
153 overruled.
(6) As the tenant had failed to comply with the requirement of section 12(3)(a) to seek protection from eviction, the Courts below were justified in ordering his eviction.
|
ivil Appeal (C) No. 137 of 1991.
From the Judgment and Order dated 20.2.1989 of the Allahabad High Court in W.P. No. 3096 of 1980.
Yogeshwar Prasad and Ms. Shoba Dixit for the Appellants.
R.B. Datar, R.K. Khanna and Surya Kant for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Leave granted.
This appeal is directed against the judgment of the Allahabad High Court (Lucknow Bench) setting aside the order dated 23.9.1980 terminating the respondent 's services.
The sole question which falls for consideration in this appeal is whether the order dated 23.9.1980 terminating the respondent 's services, who was admittedly an ad hoc and temporary employee is vitiated in law.
The High Court has held that since juniors to the respondent were retained in service while the respondent 's services were terminated, the order of termination was discriminatory in nature.
It further held that since the order of termination was founded on an adverse entry awarded to the respondent his character roll without giving him any opportunity on the ground that he was not suitable, the order "cannot be said to be a decision given in good faith.
" The High Court further observed: "Even if any punishment was to be awarded, it should have been proportionate to the alleged offence , if any." On these findings the High Court held that the order of termination suffered from apparent error of law, it accordingly allowed the respondent 's writ petition and quashed the order of termination.
The factual matrix of the case is in a short compass.
The respon 32 dent, was appointed on ad hoc basis on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examinater of the State of Uttar Pradesh, for a fixed period ending on 31.8.1977.
In December, 1977 the respondent was again appointed on ad hoc basis for a period ending on 28.2.1978.
Since the regular appointment could not be made in time, the respondent 's services were extended from time to time.
The last extension was granted on 21.1.1980 and the extended period of service was to expire on 28.2.1981.
The terms and conditions of respondent 's service as contained in the order of appointment stated that the appointment was ad hoc, purely temporary for the term fixed in the order and his services were liable to be terminated at any time without assigning any reason.
He was awarded an adverse entry in his character roll for the year 1977 78.
The entry stated that the respondent 's work was poor and he should work hard and take interest in the work.
The respondent made representation against the entry but the same was rejected.
The respondent and Rajendra Prasad Pandey another Sub Auditor both were deputed to audit the accounts of Raja Raghunbar Dayal Inter College, Sitapur for the year 1979 80.
While carrying on the Audit the respondent and Rajendra Prasad Pandey both are alleged to have acted in excess of their authority in auditing the "Boys Fund Accounts" of that College for the year 1978 79 on their own accord without any authority for the same.
They issued audit note under their own signatures and also irregularly demanded a high amount of Rs. 13,250.70 as audit fee and collected an amount of RS.
2,000 as audit fee for which they issued receipts under their own signatures.
On receipt of complaint a preliminary inquiry was held that it was found that the allegations against the respondent and Rajendra Prasad Pandey were correct and both of them had acted beyond their authority and collected a sum of Rs. 2,000 as audit fee for the audit of the Boys Fund Accounts, although the Boys Fund of the Institution did not fall within the purview of audit of the Local Funds Audit and no fee was chargeable for the audit of such Fund.
After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duties at Allahabad, but the respondent proceeded on leave and did not join his duties at Allahabad.
Ultimately, the respondent 's services were terminated by the order dated 32.9.1980 and on the same day by another order, service of Rajendra Prasad Pandey were also terminated.
Both the aggrieved persons filed writ petitions in the High Court at Lucknow Bench under Article 226 of the Constitution contending that their termination orders were illegal, having been passed in violation of Article 311 of the Constitution.
The writ petition filed by Rajendra prasad pandey was dismissed but the respondent 's writ petition was allowed by a 33 Division Bench of the High Court on the ground as noted earlier.
There is no dispute that the respondent was an ad hoc and temporary employees and the terms and conditions of his employment were regulated by the U.P. Temporary Government Servant (Termination of Services0 Rules, 1975.
The contract of service as contained in the appointment letter also stipulated the terms and conditions of the respondent 's employment that his services were liable to be terminated at any time without assigning any reason or compensation.
In the counter affidavit filed before the High Court the order of termination was defended on the ground that the respondent 's work and conduct were not satisfactory and he was unsuitable for the service, therefore his services were terminated.
To support that contention the appellant placed reliance on the adverse entry awarded to the respondent in the year 1977 78 and also on the allegations made against him with raged to the audit of the Boys Fund of Raja Raghubar Dayal Inter College.
The High Court held that since junior persons to the respondent in service were retained, the order of termination was rendered illegal.
In our opinion, the principle of 'last come first go ' is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on a count of retrenchment.
In the event of retrenchment the principle of 'last come first go ' is applicable under which senior in service is retained while the junior 's services are terminated.
But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service.
if out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service.
Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16 of the Constitution.
if a junior employees is hard working, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service.
if this principle is not accepted there would be discrimination and the order of the termination of a junior employee would be unreasonable and discriminatory.
On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service.
The view taken by the High Court is not sustainable in law.
34 The High Court held that the termination of respondent 's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate.
it is unfortunate that the High Court has not recorded any reasons for this conclusion.
The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorised audit of the Boys Fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service.
The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorised audit constituted adequate material to enable to competent authority to form the requisite opinion regarding the respondents suitability for service.
Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service.
If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
A temporary Govt.
Servant has no right to hold the post, his services are liable to be terminated by giving him one month 's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt.
servants.
A temporary Govt.
servant can, however, be dismissed from service by way of punishment.
Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant.
if it decides to take punitive action may hold a formal inquiry by framing charges and giving opportunity to the Govt.
servant in accordance with the provisions of article 311 of the Constitution.
since, a temporary Govt.
servant is also entitled to the protection of Article 311(2) in the same manner as a permanent Govt.
servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment.
It is now sell settled that the form of the order is not conclusive 35 and it is open to the Court to determine the true nature of the order.
in Parshotam Lal Dhingra vs Union of India; , a Constitution Bench of this Court held that the mere use of expressions like 'terminate ' or 'discharge ' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Govt.
servant is punitive in nature.
The Court further held that in determining the true nature of the order the Court should apply two tests namely: (1) whether the temporary Govt.
servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Govt.
servant is by way of punishment.
It must be borne in mind that a temporary Govt.
servant has no right to hold the post and termination of such a Govt.
servant does not visit him with any evil consequences.
The evil consequences as held in Parshotam Lal Dhingra 's case (supra) do not include the termination of services of a temporary Govt.
servant in accordance with the terms and conditions of service.
The view taken by the Constitution Bench in Dhingra 's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in the State or Orrisa and anr.
vs Ram Narayan Das; , ; R.C. Lacy vs The State of Bihar & Ors., C.A. No. 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah vs The Union of India, ; Jagdish Mitter vs The Union of India, ; A.G. Benjamin vs Union of in`ia, C.A. No. 1341/66 decided on 13.12.1966 and Shamsher Singh & Anr.
vs State of Punjab,[1975] 1 SCR 814, These decisions have been discussed and followed by a three Judge Bench in State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, ; Learned counsel for the respondent urged that the allegations made against the respondent in respect of the audit of Boys Fund of an educational institution were incorrect and he was not given any opportunity of defence during the inquiry which was held ex parte.
had he been given the opportunity, he would have placed correct facts before the inquiry officer.
His services were terminated on allegation of misconduct founded on the basis of an ex parte enquiry report.
He further referred to the allegations made against the respondent in the counter affidavit filed before the High Court and urged that these facts demonstrate that the order of termination was in substance, an order of termination founded on the allegations of misconduct, and the ex parte enquiry report.
In order to determine this question, it is necessary to consider the nature of the respondent 's right to hold the post and to ascertain the nature and purpose of the inquiry held against 36 him.
As already observed, the respondent being a temporary Govt.
servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him.
The termination order does not indict the respondent for any misconduct.
The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent 's suitablity and continuance in service.
There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent 's services by an innocuous order in accordance with the terms and conditions of his service.
Mere fact that prior to the issue of order of termination, an inquiry against the repondent in regard to the allegations of unauthorised audit of Boys Fund, was held does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent instead it exercised its power to terminate the respondent 's services in accordance with the contract of service and the Rules.
In State of Orissa & Anr.
vs Ram Narain Dass, ; a Constitution Bench of this court considered the question and indicated "the fact of the holding of an inquiry is not decisive of the question.
What is decisive is whether the order is by way of punishment in the light of the tests laid down in Purshottam Lal Dhingra 's case." In Jagdish Mitter 's case (supra) a Constitution Bench of this Court held that every order terminating the services of a temporary public servant does no amount to dismissal or removal from service merely because an inquiry was held before the order of termination was passed.
The Court observed that the appropriate authority has power to terminate a temporary public servant either by discharging him under the terms of contract or the relevant rules or by holding departmental disciplinary inquiry and dismissing him from service.
Before passing order of termination the competent authority may hold inquiry in fairness to ascertain whether the temporary servant should be continued in service or not.
While discussing the nature of preliminary inquiry the Court observed as under: "There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not the punish the temporary servant but just to decide whether he 37 deserves to be continued in service or not.
If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of article 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged.
" In Champaklal chiman lal Shah 's case (supra) the appellant therein was a temporary employee of the Union Government.
His services were terminated without assigning any reasons and without affording him opportunity of showing cause.
Before passing the order of termination the competent authority had issued a notice to Champaklal Chimanlal Shah calling upon him to explain certain irregularities and to show cause why disciplinary action should not be taken against him.
In response to the notice, he submitted his explanation thereupon, certain preliminary enquiries were held, but he was not given opportunity to place his case during the preliminary enquiry.
However, after the preliminary enquiry to regular departmental enquiry was held instead proceedings for departmental enqiury were dropped and the services of Chimanlal Shah were terminated in accordance with the terms and conditions of service of a temporary Govt.
servant.
The termination order was assailed on the ground that the order of termination was in substance an order of punishment.
the Constitution Bench held that the order of termination was not an order of punishment and the appellant was not entitled to the protection of Article 311(2) of the Constitution.
The Court emphasised that when a preliminary enquiry is held against a temporary Govt.
employee, it must not be confused with the regular departmental inquiry which usually follows the preliminary inquiry, after the government decides to frame charges and to get a departmental enquiry made, with a view to inflict one of the three major punishments on the Govt.
servant.
So far as the preliminary enquiry is concerned, there is no question of it being governed by Article 311(2) of the Constitution, as it is made for the purpose of collection of facts to enable to the competent authority to decide whether punitive action should be taken or action should be taken in terms and under the contract of service or the rules applicable to a temporary government servant.
A Govt.
servant has no right to insist for affording him opportunity during such enquiry and such an 38 ex parte enquiry is not initiated in law in view of the purpose and object of preliminary enquiry.
On an elaborate discussion, the Court observed as under: "In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein.
Such a preliminary enquiry may even be held ex parte for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry.
But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above.
There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments.
indicated in article 311 that the government servant is entitled to the protection of that Article.
That is why this Court emphasised in Parshotam Lal Dhingra 's case (supra) and in Shyamlal vs The State of Uttar pradesh; , that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.
" The above principles were reiterated by another Constitution Bench of this Court in R.C. Lacy 's case (supra) dealing with the case of reversion of a permanent Govt.
servant officiating on a higher post.
The Bench observed that the Government might find it necessary to terminate the services of a temporary employee if it is not satisfied with the conduct or work of an employee and the same reasoning applies to a public servant who is reverted from a higher post to his substantive lower post, if the higher post was held in a temporary nature.
Before terminating the services of a temporary servant or reverting the person 39 officiating in a higher post to his substantive post, the Govt.
may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating govt.
servant.
Such an inquiry does not change the nature of the order of the termination or reversion.
In A.G. Benjamin 's case (supra) the appellant was temporarily employed as a Store Officer in the Central Tractor Organisation, his services were terminated under the Central Civil Service (Temporary Service) Rules, 1949 by granting him one month 's salary in lieu of notice.
Benjamin contended that the order of termination was in fact an order of punishment, which had been passed without affording him the protection under Article 311(2) of the Constitution.
In that case before the issue of termination order, a notice had been issued to Benjamin for showing cause as to why disciplinary action should not be taken on the allegations made against him in respect of which the charges had been framed and an enquiry officer had been appointed.
After the charges were framed and the explanation of Benjamin was obtained, the Chairman of the Central Tractor Organisation submitted a note to the Government that the departmental proceedings may take much longer time and he was not sure that after going through all the formalities of departmental enquiry Benjamin will be dealt in the way he deserved, therefore, he suggest that action should be taken under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949 for terminating his services by giving him one month 's salary in lieu of notice as he was a temporary Govt.
servant.
The Minister concerned accepted the recommendations, whereupon, order of termination was issued terminating the services of Benjamin.
While assailing the order of termination, it was seriously contended before this Court that in view of the charges being framed and the enquiry officer having been appointed the order of termination in substance was an order of punishment and the recourse to the temporary service rules had been taken only to circumvent article 311 of the Constitution.
The Constitution Bench repelled the contention and held that the preliminary enquiry held against the Govt.
servant must not be taken to mean that the Govt. had taken decision to inflict major punishment on Benjamin.
The Court held that no temporary Govt.
servant is entitled to opportunity in the preliminary inquiry as "there is no element of punitive proceedings in such an inquiry; the idea in holding such an inquiry is not to punish the temporary government servant but just to decide whether he deserves to be continued in service or not.
" Further the Constitution Bench held that even if formal departmental inquiry is initiated against the temporary Govt.
servant, it is open to the competent authority to drop further proceedings in the departmental enquiry 40 against the temporary govt.
servant and to have recourse to Rules applicable to a temporary Govt.
servant for terminating his services.
The Court observed as under: "If therefore the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary govt.
servant, it is still open to the authority to make an order of discharge simpliciter in terms of the contract of service or the relevant statutory rule.
In such cases the order of termination of services of the temporary govt.
servant which in form and in substance is no more than his discharge affected under the terms of contract or the relevant rule cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct.
" We have referred to the above decision in detail to dispel any doubt about the correct position of low.
It is erroneous to hold that where a preliminary enquiry into allegations against a temporary govt.
servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive in nature.
Learned counsel for the respondent placed reliance on the decisions of this Court in Nepal Singh vs State of U.P. & Ors.; , and Ishwar Chand Jain vs High Court of Punjab & Haryana & Anr., ; in support of his contention that the termination order is punitive in nature.
In Nepal Singh 's case a disciplinary inquiry was instituted against Nepal Singh who was a temporary sub Inspector of Police, on the charge of having contracted a second marriage during the life time of his first wife without prior permission of the Government in violating of Rule 29 of the U.P. Government Servants ' Conduct Rules, 1956.
Before any finding could be rendered the inquiry was dropped for want of territorial jurisdiction of the concerned Superintendent of Police, and thereafter, his services were terminated in accordance with the rules applicable to the temporary Government servants by giving him one month 's pay in lieu of notice.
nepal Singh unsuccessfully challenged the order of termination before the High Court, but his appeal was allowed by a three Judge Bench of this Court.
This Court quashed the order of termination on three grounds.
Firstly,it held that the order of termination was arbitrary, violative of 41 Articles 14 and 16 of the Constitution as power of termination had not been exercised honestly, in good faith for valid considerations.
Secondly, the grounds mentioned in the report of the superintendent of Police on the basis of which the services of the Sub Inspector had been terminated were mere allegations and there was no definite material for terminating his services.
Thirdly, the Court held that since the inquiry against Nepal Singh on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2) of the Constitution.
The Court further held that the termination order had been passed to circumvent the constitutional provision of article 311(2) of the Constitution.
The facts and circumstances in Nepal Singh 's case were quite different than those in the instant case.
However, Nepal Singh 's case is no authority for the proposition that the services of an ad hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service.
The Court 's observations in Nepal Singh 's case that since the enquiry against nepal Singh on certain charges was dropped and his services were terminated under the rules applicable to the temporary govt.
servant with a view to circumvent the protection of Art 311(2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case.
It appears that he decisions in the case of Champaklal (supra) and R.C. Lacy (supra) and the principles laid down therein were not brought to the notice of the Bench.
Had those decisions been placed before the Court, the finding that the termination order had been passed to circumvent the provision of article 311(2) merely because departmental inquiry was dropped and the termination order had been passed, may not have been made.
The decision of Nepal Singh 's case in this regard is per incurium.
In Ishwar Chand Jain 's case the order of termination of Probationary Judicial Officer was set aside by this Court on the ground that no relevant material had been taken into consideration in assessing the satisfactory nature of the work and conduct of the Officer on probation.
The Court held that some of the material which had been taken into account in adjudging the Judicial Officer 's work and conduct as unsatisfactory was not relevant.
The decision has no relevance to the instant case.
We are, therefore, of the opinion that neither of the two cases relied upon by the respondent lend any support to his case.
On the other hand our view is fully supported by the decision of three Judge Bench of this Court in R.K. Misra vs U.P. State Handloom Corporation, In the instant case the repondent was a temporary Government servant and there was adverse report regarding his work which was reflected in the adverse remarks made for the year 1977 78.
The competent authority held a preliminary inquiry in the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of an educational institution, On result of the preliminary enquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent 's services in exercise of its power under the terms of contract as well as under the relevant rules applicable to a temporary Govt.
servant.
It never intended to dismiss the respondent from service.
Holding of preliminary inquiry does not affect the nature of the termination order.
The allegations made against the respondent contained in the counter affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.
The High Court failed to consider the question in proper perspective and it interfered with the order of termination in a casual manner.
We, accordingly, allow the appeal and set aside the order of the High Court and dismiss the respondent 's Writ Petition.
There will be no order as to costs.
Y.Lal Appeal allowed.
|
The respondent was appointed on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examiner of State of U.P. on ad hoc temporary basis for the term fixed in the order of his appointment and his services were liable to be terminated at any time without assigning any reason.
After his initial appointment, his services were extended from time to time till 28.2.1981.
He was awarded an adverse entry in his character roll for the year 1977 78 both regarding his conduct as also his work.
The respondent alongwith one Rajendra Prasad Pandey, another Sub Auditor, were deputed to audit the accounts of Raja Raghbar Dayal Inter College, Sitapur in respect of the year 1979 80.
It is alleged that while auditing the account, they acted in excess of their authority in as much as they audited the 'Boys Fund Accounts ', issued audit note and also irregularly demanded and collected Rs. 2,000 as audit fee, and issued receipt under their signature.
On complaint a preliminary enquiry was held and the allegations were found to be correct.
After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duty at Allahabad.
Whereupon the respondent proceeded on leave and did not join his duty at Allahabad.
The respondent 's services were therefore terminated by order dated 23.9.1980 and by another order services of Pandey were also terminated.
Both of them filed writ petitions in the High Court contending that their termination orders were illegal having been passed in violation of Article 311 of the Constitution.
Whereas the writ petition filed by Pandey was dismissed, the one filed by the respondent was allowed.
The High Court held that since juniors to the respondent were retained in service while the respondent 's services were terminated, the order of termination was discriminatory in nature.
The High Court further held that the order of termination was founded on an adverse entry awarded to the respondent hence it was not in good faith; the punishment awarded to the respondent was not proportionate to the alleged offence.
Against the 30 said order, the State of U.P. filed a appeal after obtaining special leave.
The question involved for consideration is whether the order terminating the services of the respondent is vitiated in law? Allowing the appeal, this Court, HELD: Holding of preliminary inquiry does not affect the nature of the termination order.
[42C) In the instant case the respondent was a temporary Government Servant and there was adverse regarding his work which was reflected in the adverse remarks made for the year 1977 78.
The competent authority held a preliminary inquiry in regard to the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of educational institution.
On result of the preliminary inquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent 's services in exercise of its powers under the terms of contract a well as under the relevant rules applicable to a temporary Government servant.
[42A C] The principle 'last come first go ' is applicable to a case where on account of reduction of work or shrinkage of cadre, retrenchment takes place and the services of employees are terminated on account of retrenchment.
But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with term and conditions of his service.
On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service.
The view taken by the High Court is not sustainable in law.
[33D H] Appeal allowed, High Court order set aside as it interfered with order of termination in a casual manner.
[42D] Parshotam Lal Dhingra vs Union of India.
[1958] S.C.R. 828; The State of Orissa & Anr.
vs Ram Narayan Das, ; ; R.C. Lacy vs The State of Bihar & Ors., C.A.No 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah vs The Union of India, [1964] AIR S.C.449; A.G. Benjamin vs Union of India, C.A. No. 1341/66 decided on 13.12.1966; Shamsher Singh & Anr.
vs State of Punjab, [1975] 1 S.C.R. 814; State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, [1968] 3 S.C.R. 31 234; R.K. Misra vs U.P. State Handloom Corporation, , referred to.
Nepal Singh vs State of U.P. & Ors., [1985] 1 S.C.C. 56; Ishwar Chand Jain vs High Court of Punjab & Haryana & Anr., ; distinguished.
|
N: Writ Petition (Crl.) No. 508 of 1989 etc.
(Under Article 32 of the Constitution of India).
107 Harjinder singh R.N. Joshi, A. Acharjee, Navin Malhotra, Jagan M. Rao and Raju Ramchandran for the Petitioners.
V.C. Mahajan, B. Parthasarthy.
P. Parmeswaran and M. Veerappa for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
A Division Bench of this Court while expressing the view that the decisions in J.V. Jain vs Shri Pradhan and Ors., ; and Om Prakash Bahl vs Union of India and Ors, W.P. No. 845 of 1979 decided on 15.10.1979 (Unreported) require re consideration has referred these matters to the Constitution Bench.
It is convenient at this point to refer to the statement of law laid down in the aforesaid two cases.
In both the cases, as in present case the persons were detained under the ("the Act ').
The detenu made representation to the appropriate government.
By then the Advisory Board was already constituted and it was scheduled to meet to consider the case of the detenu.
The Government forwarded the detenu 's representation to the Advisory Board.
The Advisory Board considered the case of the detenu and also the representation and submitted report expressing the opinion that there was sufficient cause for the detention of the person.
The Government after considering that report confirmed the order of detention.
It appears that the representation of the detenu was not considered before confirming the detention order and it came to be considered and rejected only thereafter in vs
J. Jain case this Court observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention.
The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation.
This view has been reiterated in the unreported judgement in Om Prakash Bahl case.
The relevant facts of the present case may now be narrated: On 1 December, 1988, the officers of the Directorate of Revenue Intelligence upon getting information that the contraband gold has been secreted in the room occupied by K.M. Abdulla Kunhi, searched the room in the presence of independent witnesses.
Another person called 108 Mohammed Ali was also present inside the room.
The officers recovered one Samsonite pouch and some bundles of the Indian currencies amounting to Rs. 34,800 from the table drawer in the room.
Inside the said pouch, there were five gold biscuits of 24 ct.
purity and of foreign origin.
under the Mahazar, the officer seized the gold biscuits along with the Indian currency.
On 24 February 1989, the State Government passed two separate orders of detention under Section 3(1)(iv) of the Act, directing the detention of K.M. Abdulla Kunhi, the common petitioner in W.P. (Crl.) No. 508 of 1989 and SLP (crl.) 2009 of 1989, and B.L. Mohammed Ali, the common petitioner in W.P. (Crl.) No. 542 of 1989 and SLP (Crl) No 2117 of 1989.
On 9 March 1989, Mohammed Ali was taken into custody.
both of them were detained in Central Prison, Banglaore.
On 17 April, 1989, the detenus made representations to the Government.
The representations could not be immediately considered since they required translation and collection of information and comments from different authorities.
In the meantime, the case was referred to the Advisory Board which had its meeting on 20 April 1989.
The Board considered the case of the detenus and reported that there was sufficient cause for their was unexplained delay in considering the representation of the detenu.
Indeed, counsel for the petitioners very fairly submitted that they are not raising the question of delay.
They also did not argue that the rejection of the representation after the confirmation of detention was not an independent consideration.
There are two constitutional safeguards, namely, clause (4) of Article 22, and clause (5) of Article 22.
the former requires that if a detenu is liable to be detained for a longer period than three months, his case shall be referred to the Advisory Board which must report before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
The function of the Board is purely advisory and its report will enable the Government to detain the person beyond three months provided the detention is valid on its merits and does not otherwise offend the Constitution.
Clause (5) of Article 22 provides that when any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
The detenu has two rights under clause (5) of Article 22 of the constitution: (i) to be informed, as soon as may be, of the grounds on 109 which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to be afforded the earliest opportunity of making a representation against the order of detention.
There are also statutory safeguards with regard to detention of persons under the Act in tune with the Constitutional requirements.
Section 3 of the Act provides power to make detention orders.
Sub Section (1) speaks of authorities who are competent to make detention orders.
Sub section (2) states that when an order of detention is made by the State Government or by an officer empowered by the State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of that order.
Sub section (3) thereof provides that a person detained in pursuance of a detention order shall be furnished with the grounds of detention order as soon as may be, but ordinarily not later than five days after the detention.
But in exceptional circumstances and for reasons to be recorded in writing, the grounds shall be furnished not later than fifteen days from the date of detention.
Section 8 of the Act provides for reference of the detenu 's case to the Advisory Board, the Chairman and members of which shall possess the qualification specified in sub clause (a) of clause (4) of Article 22 of the Constitution.
They must be persons who are, or have been, or are qualified to be appointed as, Judges of a High Court.
Clause (b) of Section 8 makes it obligatory for the Government to refer the case of the detenu to Advisory Board within five weeks from the date of detention.
Clause (c) of Section 8 provides that the Board shall after considering the reference and other material place before it and after hearing the detenu if he desires to be heard in person, give its report as to whether or not there is sufficient cause for the detention of the person concerned.
The Board shall submit the report within eleven week from the date of detention of the person concerned.
Clause (f) of Section 8 states that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue his detention for such period as the Government deems fit subject to the maximum period permissible under the Act.
In every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person, the Government shall revoke the detention order and release the person forthwith.
This provision, of course, is subject to Section 9 with which we are not concerned.
110 Section 10 prescribes the maximum period for which any person may be detained.
Section 11 provides power to the State Government or the Central Government to revoke the detention order without prejudice to the provisions of Section 21 of the General Clauses Act.
This revocation shall not bar the making of another detention order under section 3 against the same person.
It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation.
Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government 's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government.
It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
It has to consider the representation on its own without being influenced by any such view of the Board.
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references.
The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law.
The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention.
The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government.
The right to have the representation considered by the Government, is, safeguarded by cl.
(5) of Article 22 and it is independent of the consideration of the detenu 's case and his representation by the Advisory Board under cl.
(4) of article 22 read with section 8(c) of the Act.
(See: Sk.
Abdul Karim & Ors.
vs State of West Bengal; , ; Pankaj Kumar Chakrabarty & Ors.
vs State of west Bengal; , ; Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr., ; ; B. Sundar Rao and Ors.
vs State of Orissa, ; John Matrin vs State of West Bengal, [1975] 3SCR 211; S.K. Sekawat vs State of West Bengal, and haradhan Saha & Anr.
vs State of West Bengal and Ors.
,[1975] The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution.
111 Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible.
it is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible.
The words "as soon as may be" occuring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay.
However, there can be no hard and fast rule in this regard it depends upon the facts and circumstances of each case.
There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with.
The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation.
Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
This has been emphasised and re emphasised by a series of decisions of the Court.
(See: Jayanarayan Sukul vs State of West bengal, {1970] 1 SCC 219; Frances Coralie Mullin vs W.C. Kambra and Ors.
, ; ; Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police and Ors., and Aslam Ahmed Zahire Ahmed Shaik vs Union of India and ors.
; , In Jayanarayan Sukul case, A.N. Ray, J., as he then was, speaking for the Constitution Bench has laid down four principles which should govern the consideration of representation of detenus (at p.224): "First the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.
Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board.
Thirdly, there should not be any delay in the matter of consideration.
It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens.
A citizen 's right raised a correlative duty of the state.
fourthly, the appropriate 112 Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu 's representation to the Advisory Board.
If the appropriate Government will release the detnu the Government will not send the matter to the Advisory Board.
If, however, the Government will not release the detenu the Government will send the case along with the detenu 's representation to the Advisory Board.
If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu.
If the the Advisory Board will express any opinion against the release of the detnu the Government may still exercise the power to release the detenu.
" In frances Coralie Mullin vs W.C. Khambra and Ors., Chinappa Reddy, J., while dealing with the time imperative for consideration of the representation has emphasised (at 279): "We, however, hasten to add that the time imperative can never be absolute or obessive.
The Court 's observations are not to be so understood.
There has to be lee way, depending on the necessities (we refrain from using the word 'circumstances ') of the case.
One may well imagine a case where a detenu does not make representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it.
Several such situations may arise compelling departure from the time imperative.
But no allowance can be made for lethargic indifference.
No allowance can be made for needless procrastination .
But allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved.
The burden of explaining the necessity for the slightest departure from the time imperative is on the detaining authority.
" In Frances Coralie Mullin 's case the detenu 's representation was received by the detaining authority on December 26, 1979.
Without any loss of time copy of the representation was sent to the customs 113 authorities for their remarks which was obviously necessary because the information leading to the order of detention was collected by the customs authorities.
The fact were undoubtedly complex since allegation against the detenu revealed an involvement with an international gang of dope smugglers.
The comments of the customs authorities were received on January 4, 1980.
The Advisory Board was meeting on january 4, 1980 and so there could be no question of the detaining authority considering the representation of detenu before the board met, unless it was done in a great and undue haste.
After obtaining the comments of the customs authorities, it was found necessary to take legal advice as the representation posed many legal and constitutional question, so, after consultation with the Secreatary (Law and Judicial) Delhi Administration, the representation was finally rejected by the Administrator or January 15, 1980.
it was held that if there appeared to be any delay it was not due to any want of care but because the representation required a thorough examination in consultation with investigation agencies and advisers of law We agree with the observations in frances Coralie Mullin case.
The time imperative for consideration of representation can never be absolute or obsessive.
it depends upon the necessities and the time at which the representation is made.
The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board.
In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu.
The representation may be received after the case of the detenu isreferred to the Board.
Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings.
In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board.
Nor it could be said that the government has delayed consideration of the representation, unnecessarily awaiting the report of the Board.
It is proper for the Government in such situations to await the report of the Board.
If the Board finds no material for detention on the merits andreports accordingly, the Government is bound to revoke the order of detention.
Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention.
The Board has to submit its report within eleven weeks from the date of detention.
The Advisory Board may hear the detenu at his request.
The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of 114 The High Court.
It is therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board.
If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board.
It will have to be dealt with and disposed of by the Government as early as possible.
The crucial question that remains for consideration is whether the Government should consider and dispose of the representation before confirming the detention.
This Court in V.J. Jain case has observed (at 405) that it is a constitutional obligation under clause (5) of Article 22 to consider the representation before confirming the order of detention.
if it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation.
To reach this conclusion, the Court has relied upon two earlier judgments of this Court: (i) Khudiram Das vs State of West Bengal and Ors., ; and (ii) Khairul Haque vs State of West Bengal, W.P. No.246/69 decided on 10.9.1969(Unreported).
The decision in Khudiram case is of title assistance to the principle stated in V.J. Jain case.
It was a case of belated consideration of the representation without acceptable explanation.
The decision in Khairul Haque case, however, relevant.
It is also unreported decision.
The facts of the case and the principles stated therein may be furnished.
There the petitioner was detained by an order dated 5 June 1969 of the District Magistrate, 24 Parganas, West bengal, under Section 3(2) of the .
He was arrested and detained in Dum Dum Central Jail on 6 June 1969.
The District magistrate informed the State Government of his said order on 9 June 1969.
On 14 June 1969, the Governor gave his approval and reported the case of the Central Government.
On or about 23 June 1969, the Government received the representation of the petitioner.
On 30 June 1969 the Governor referred the case of the petitioner to the Advisory Board.
The Advisory Board made its report on 11 August 1969 to the effect that there was sufficient cause for the detention of the petitioner.
Thereafter, on 12 August 1969, the Governor confirmed the order of detention.
On 29 August 1969, the Governor rejected the petitioner 's representation.
The Court while referring these facts said that there was unaccounted delay of little more than two months in the consideration of the representation .
Doubtless the detention was invalid on this delay alone and the Court could have quashed the 115 detention on that ground.
But the Court, however, observed that it is doubtful whether the Government 's consideration of the representation was independent as implicit in the language of Article 22(5).
If the confirmation by the Government of the order of the District magistrate is made first and the Government rejects the representation thereafter, such rejection is not an independent consideration but as the result of its decision to confirm the order of detention.
It was also observed that the process of decision making has to be the other way about, that is to say, the Government must first consider the representation and only later decide whether it should confirm the order of the District magistrate on the basis of the report of the Advisory Board.
The decision in Khairul Haque case has been followed in V.J. Jain case which in turn was followed in Om Prakash Bahl case.
There is no constitutional mandate under cl.
(5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention.
As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention.
Indeed, there is no justification for imposing this restriction on the power of the Government.
As observed earlier, the Government 's consideration of the representation is for a different purpose, namely to find out whether the detention is in conformity with the power under the statute.
This has been explained in Haradhan Saha case, where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law.
There need not be a speaking order in disposing such representation.
There is also no failure of justice by the order not being a speaking order.
All that is necessary is that there should be real and proper consideration by the Government.
It is necessary to mention that with regard to liberty of citizen the Court stands guard over the facts and requirement of law, but Court cannot draw presumption against any authority without material.
It may be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation.
Secondly, there may be cases where the Government has to consider the representation only after confirmation of detention.
Clause (5) of Article 22 suggests that the representation could be received even after confirmation of the order 116 of detention.
The words 'shall afford him the earliest opportunity of making a representation against the order ' in clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under Section 8 of the Act.
But if the detenu does not exercise his right to make representation at that stage, but presents it to the government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute.
The confirmation ofthe order of detention is not conclusive as against the detenu.
It can be revoked suo motu under Section 11 or upon a representation of the detenu.
It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention.
The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention.
Nor it could be presumed that such consideration is not an independent consideration.
With all respect, we are not inclined to subscribe to the views expressed in V.J. Jain.
Om Prakash Bahl and Khairul Haque cases.
They cannot be considered to be good law and hence stand overruled.
Counsel however, submitted that the representation of the detenu was not sent to the Advisory Board for consideration.
This question was not raised before the High Court, nor in the Writ Petitions before us and hence rejected.
These petitions will now be placed before the Division Bench for final disposal.
N.V.K. Petitions disposed of.
|
A division Bench of this Court in V.J. Jain vs Shri Pradhan and Ors., ; observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention.
The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation.
This view was reiterated in the later case of Om Prakash Bahl vs Union of India, W.P.No. 845 of 1979 decided on 15.10.1979.
As the aforesaid view required reconsideration, the instant SLPs and WPs had been referred to and heard by a constitutional bench.
On December 1, 1988, the officers of the Directorate of Revenue Intelligence upon getting information that contraband gold has been secreted in the room of petitioner No. 1 searched the room in the presence of independent witnesses.
Another person was also present inside the room.
The officers recovered one Samsonite punch, and some bundles of Indian currencies from the table drawer in that room.
Inside the said pouch, there were five gold biscuits of 24 ct.
purity and of foreign origin, and seized the same under a Mahazar.
On 24th February, 1989, that State Government passed two separate orders of detention under section 3(1)(iv) of the Conservation of 103 Foreign Exchange and Prevention of Smuggling Activities Act 1974 and the petitioners were taken into custody and detained in the Central pension.
On 17th April, 1989, the detenus made representation to the Government, which could not be immediately considered since they required translation, and collection of information and comments.
In the meanwhile, the matter was referred to the Advisory Board, which had its meeting on 20th April, 1989 considered the case of the detenus, and reported that there was sufficient cause for detention.
On 27th april, 1989, the Government accepted the report and confirmed the detention orders.
On 6th and 7th May, 1989 the Government considered and rejected on representation of the detenus and they were informed of the same.
The detention orders were challenged in the High Court through a writ petition but the High Court dismissed the same.
In the appeals and writ petition to this Court, the main question for consideration was, whether the confirmation of detention order upon accepting the report of the Advisory Board renders itself invalid solely on the ground that the representation of the detenu was not considered, and the subsequent consideration of the representation would not cure that invalidity.
Disposing of the matters, the Court, HELD: 1(a) With regard to liberty of citizens the Court stands guard over the facts and requirements of law, but Court cannot draw presumption against any authority without material.
[115G] (b) The confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation of the detenu.
[115G] (c) There may be cases where the Government has to consider the representation only after the confirmation of the detention.
[115H] 2(a) There are two constitutional safeguards, viz: Clause (4) of Article 22, and Clause(5) of Article 22.
The former requires that if a detenu is liable to be detained for a longer period than three months, hiscase shall be referred to the Advisory Board which, must report before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
The latter provides that when any person is detained in pursuance of an order made under any 104 law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
[108E G] 2(b) The detenu has two rights under clause (5) of Article 22 of the Constitution: (i) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to afforded the earliest opportunity of making a representation against the order of detention.
[108H; 109A] 3.
The function of the Advisory Board is purely advisory and its report will enable the Government to detain the person beyond three months provided the detention is valid on its merits and does not otherwise offend the Constitution.
[108F] 4(a) The constitution right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation.
The obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government 's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to from its opinion and send a report to the Government.
[110B C] 4(b) It is implicit in clause (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
it has to consider the representation on its own without being influenced by any such view of the Board.
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the reference.
The Government consider the representation to ascertain essentially whether the order is in conformity with the power under the law.
[110C D] 4(c) The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention.
The consideration by the Board is in additional safeguard and not a substitute for consideration of the representation by the Government.
[110E] 4(d) The right to have the representation considered by the 105 Government, is safeguarded by clause (5) of Article 22, and it is independent of the consideration of the detenu 's case and his representation by the Advisory Board under clause (4) of Article 22 read with section 8(c) of the .
[110F] SK.
Abdul Karim & Ors.
vs State of West Bengal, ; , Pankaj Kumar Chakrabarty & Ors.
vs State of West bengal; , ; Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr.,[1969] 2 SCC 426; B. Sundar Rao & Ors.
vs State of Orissa, ; John Martin vs State of West Bengal, [1975] 3SCR 211; .
S.K. Sekawat vs State of West Bengal, and Haradhan Saha & Anr.
vs State of West Bengal & Ors.
,[1975] , referred to.
5(a) The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution.
Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible.
It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible.
[110H;111A] 5(b) The words "as soon as may be" occuring in clause (5) of Article 22 reflect the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay.
However, there can be no hard and fast rule in this regard.
It depends upon the fact and circumstances of each case.
There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with the requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation.
Any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
[11B D] Jayanarayan Sukul vs State of West Bengal, ; ; Frances Coralie Mullin vs W.C. Khambra and Ors., ; ; Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police & Ors., ; and Aslam Ahmed Zahire Ahmed Shaik vs Union of India & Ors.
, ; , referred to.
6(a) There is no constitutional mandate under clause (5) of Arti 106 cle 22, much less any statutory requirement to consider the representation before confirming the order of detention.
As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention.
indeed there is no justification for imposing the restriction on the power of the Government.
[115C D] 6(b) Clause 5) of Article 22 suggests that the representation could be received even after confirmation of the order of detention.
The words "shall afford him the earliest opportunity of making a representation against the order" in clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under section 8 of the Act.
But ifthe detenu does not exercise his right to make representation at that stage, but presents it to the Government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statue.
The confirmation of the order of detention is not conclusive as against the detenu.
It can be revoked suo motu under Section 11 or upon a representation of the detenu.
[116A B] 6(c) So long as the representation is independently considered by the government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention.
The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention.
Nor it could be presumed that such consideration is not an independent consideration.
[116C D] V.J. Jain vs Shri Pradhan & Ors.
, ; ; Om Prakash Bahl vs Union of India & Ors., W.P. No. 845 of 1979 decided on 15.10.1979 and Khairul Haque vs State of West Bengal W.P.No.
246/69 decided on 10.9.1969, over ruled; Khudiram Das vs State of West Bengal & Ors., ; , distinguished.
|
il Appeal No. 2341 of 1978.
From the Judgement and Decree dated 16.11.1977 of the Andhra Pradesh High Court in Writ Appeal No. 358 of 1976.
Altaf Ahmed, Additional Solicitor General, P. Parmeshwaran and Dilip tandon for the Appellant.
128 A.S. Nambiar and B. Parthasarthy for the Respondent.
The Judgement of the Court was delivered by AHMADI, J.
This appeal, on certificate, is directed against the decision of the High Court of Andhra Pradesh which was quashed the imposition of duty and levy of penalty on the ground that the show cause notice was issued after the expiry of the period of six months from the accrual of the cause of action.
The facts leading to this appeal are as follows: The respondent M/s. Ramdev Tobacco Company, a sole proprietory concern, was at all material times a dealer in tobacco having a licenced warehouse at Guntur.
The dealer was liable to pay duty on the tobacco received at his warehouse and transported to another dealer.
On August 30, 1972 the appellant issued a notice calling upon the respondent to show cause why duty should not be demanded under Rule 160 of Central Excise Rules, 1944 (`the Rules ' hereafter) on 64,444 kgs.
of VFC Farmash Tobacco removed from his warehouse and not accounted for in the warehouse register maintained under the Rules.
The respondent was also asked to show cause why penalty should not be imposed for infraction of Rules 151 and 32(1) of the Rules for illicit removal of the aforementioned quantity of tobacco.
This show cause notice was founded on the allegation that in 1970 the respondent obtained six transport permits (T.P. 2) dated January 13, 1970, February 10, 1970, March 26, 1970, May 16, 1970, July 24, 1970 and August 5, 1970 and transported under each permit more than the quantity of tobacco allowed thereunder in contravention of the aforementioned rules.
The respondent sent a detailed reply to the said show cause notice on November 4, 1972.
After giving a personal hearing to the respondent on September 18, 1973 the appellant came to the conclusion that the respondent had evaded payment of duty on 1272 bags weighing 48,304 Kgs, of VFC Farmash tobacco and issued a demand under Rule 160 in the sum of Rs.1,66,165.76 under adjudication order No. 173/74 dated April 9, 1974.
In addition thereto the appellant imposed a penalty of Rs. 100 for contravention of Rules 151 and 32(1) of the Rules.
Thereupon the respondent filed a writ petition No.2600 of 1974 under Article 226 of the Constitution challenging the aforesaid order of the appellant.
This writ petition was heard and disposed of by a learned Single Judge of the High Court who took the view that the appellant 's action was time barred inasmuch as it was initiated after the expiry of the period of six months from the accrual of the cause of action.
According to the learned Judge under section 129 40(2) of the (`the ' hereinafter) no suit, prosecution or other legal proceeding could be instituted for anything done or ordered to be done under the law after the expiration of six months from the accrual of the cause of action.
Since a period of more than six months had indisputably expired from the dates on which the excess tobacco was transported under the six transport permits in question, the action was clearly time barred.
In this view of the matter the writ petition was allowed and the demand made under the impugned adjudication order both in respect of duty and penalty was quashed.
The present appellant questioned the correctness of this view in appeal, Writ Appeal No. 358 of 1976, but in vain.
The Division Bench found the view taken by the learned Single Judge in accord with its view in Writ Petition No. 2516 of 1974 decided on April 1, 1976.
It, therefore, dismissed the appeal but since it had granted a certificate to appeal in the case relied on, it also granted a similar certificate which has given rise to this appeal.
Sub section (2) of section 40 of the as it stood at the relevant point of time before its amendment by Amendment 22 of 1973 read as under: "No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under the after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of".
Before we proceed to analyse this sub section it would be advantageous to bear in mind that sub section (1) of this section bars the institution of any suit, prosecution or other legal proceeding against the Central Government or its officer in respect of any order passed in good faith or any act in good faith done or ordered to be done under the .
The second sub section prescribes a period of limitation for suits, prosecutions and other legal proceedings instituted, lodged or taken for anything done or ordered to be done under the .
That is why in Public Prosecutor, Madras vs R.Raju & Anr., etc.; , it was urged on a conjoint reading of the two sub sections that sub section (2) applied only to Government and could not come to the rescue of a tax payer.
Rejecting this contention this Court held: "The two sub sections operate in different fields.
The first sub section contemplates bar of suits against the Central Government or against the officers by protecting them in 130 respect of orders passed in good faith or acts done in good faith.
It is manifest that the second sub section does not have any words of restriction or limitation of class of persons unlike sub section (1).
Sub section (2) does not have any words of qualification as to persons.
Therefore, sub section (2) is applicable to any individual or person.
" This the appellant 's contention that sub section (2) was confined only to the Government officers was found to be unwarranted on the plain words of the provision and was also repelled by reference to other comparable statutes which went to show that whenever the legislature intended to limit the application against the Government officers, the Legislature had chosen appropriate words of limitation to restrict the operation of the provision.
It follows, therefore, that the application of the sub section extended to any person, not being a Government Officer, against whom any suit, prosecution or other legal proceeding was commenced for anything done or ordered to be done under the .
The next contention convassed in that case by the learned counsel for the appellant was that the words "anything done or ordered to be done" employed in the sub section would not include anything done in violation of the .
This Court after referring to the definition of the word `act ' in the , which extended to illegal omissions also, and the case law on the subject observed at page 820 as under: "These decisions in the light of the definition of the word `act ' in the establish that non compliance with the provisions of the statute by omitting to do what the act enjoins will be anything done or ordered to be done under the .
The complaint against the respondents was that they wanted to evade payment of duty.
Evasion was by using and affixing cut and torn banderols.
Books of account were not correctly maintained.
There was shortage of banderols in stock.
Unbanderolled matches were found.
These are all infraction of the provisions in respect of things done or ordered to be done under the .
" It is, therefore, clear from the above observation that any omission or infraction of the statutory provision would also fall within the ambit of the provision.
Non payment of duty or dues which a dealer is under an obligation to pay under the statute was, therefore, held to fall within 131 the scope of the provision.
In that case the complaint against the respondents was that to evade the payment of duty they had used and affixed cut and torn banderols and had failed to maintain the accounts correctly resulting in shortage in stocks.
The respondents were prosecuted for contravention of the Rules punishable under sections 9(b) and 9(d) of the as also under section 420 read with section 511 and 109, I.P.C. The respondents pleaded the bar of section 40 of the as it then stood.
The High Court upheld the contention that the prosecution was barred by the rule of limitation incorporated in section 40 as the same was instituted after the expiry of six months from the date of the commission of the alleged offences.
This Court on the aforesaid line of reasoning affirmed the High Court 's decision.
But the question is whether the issuance of a show cause notice and the initiation of the consequential adjudication proceedings can be described as `other legal proceedings ' within the meaning of sub section (2) of section 40 of the ? If the said departmental action falls within the expression `other legal proceeding ' there can be no doubt that the action would be barred as the same indisputably was initiated six months after the accrual of the cause action.
So the crucial question is whether the issuance of the show cause notice dated August 30, 1972 and the passing of the impugned order in adjudication proceedings emanating therefrom constitutes `other legal proceeding ' within the meaning of section 40(2) of the to fall within the mischief of that sub section which bars such proceedings if commenced after a period of six months from the accrual of the cause of action.
The learned Additional Solictor General submitted that the expression `other legal proceeding ' must be read ejusdem generis with the proceeding expressions `suit ' and `prosecution ' and if so read it becomes crystal clear that the department 's action cannot come within the purview of `other legal proceeding '.
How valid is this contention is the question which we are called upon to answer in the present appeal.
The rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined.
By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires.
General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previously enumerated unless the language of the statute spells out an intention to that effect.
Courts 132 have also limited the scope of the general words in cases where a larger meaning is likely to lead to absurd and unforeseen results.
To put it differently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning.
The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words.
But unless there is genus which can be comprehended from the preceding words, there can be no question of invoking this rule.
Nor can this rule have any application where the general words precede specific words.
There can be little doubt that the words `other legal proceeding ' are wide enough to include adjudication and penalty proceedings under the .
Even the learned Additional Solicitor General did not contend to the contrary but what he said was that since this wide expression is preceded by particular words of a certain genus, namely, words indicating reference to proceedings taken in courts only, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and should, therefore, receive a limited meaning to exclude proceedings of the type in question.
There can be no doubt that `suit ' or `prosecution ' are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one.
The use of the expression `instituted ' in section 40(2) strengthens this belief.
Since this sub section has been construed by this Court in Raju 's case (supra) not to be confined in its application to only Government servants but to extend to others including the assessees and since the words `for anything done or ordered to be done under this ' are found to be comprehensive enough to include acts of non compliance or omissions to do what the and the Rule enjoin, the limitation prescribed by section 40(2) would undoubtedly hit the adjudication and penalty proceedings unless the expression `other legal proceeding ' is read ejusdem generis to limit its ambit to legal proceedings initiated in a court of law.
The scope of section 40(2) as it stood before its amendment pursuant to Raju 's case came up for consideration before a Division 133 Bench of the Madhya Pradesh High Court in Universal Cables Ltd. vs Union of India, [1977] ELT (J92) wherein the question raised for determination was whether penalty procedings taken under Rule 173Q for the infraction of Rule 173C with a view to evading payment of duty fell within the expression `other legal proceeding ' used in the said sub section.
The High Court conceded that the expression when read in isolation is wide enough to include any proceeding taken in accordance with law, whether so taken in a court of law or before any authority or tribunal but when read with the preceding words `suit ' or `prosecution ' it must be given a restricted meaning.
This is how the High Court expressed itself at page J 106: "Now the language of section 40 (2) is: `no suit, prosecution or other legal proceeding shall be instituted '.
`Suit ' and `prosecution ' which precede the expression `other legal proceeding ' can be taken only in a Court of Law".
After stating the expanse of the ejusdem generis rule, as explained in Amar Chandra vs Excise Collector, Tripura, AIR.
at 1868 (Sutherland, Volume 2 pages 399 400) the High Court observed that there was no indication in the said sub section or elsewhere in the that the said general words were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of the ejusdem generis rule.
A departmental proceeding like penalty proceedings were, therefore, placed outside the scope of the said sub section.
This view was quoted with approval by a learned Single Judge of the Bombay High Court in C.C. Industries & Others vs H.N. Ray and Another, at 453.
These two cases, therefore, clearly support the view canvassed before us by the learned Additional Solicitor General.
We have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions.
In considering the scope of the expression `other legal proceeding ' we have confined ourselves to the language of sub section (2) of section 40 of the before its amendment by 22 of 1973 and should not be understood to express any view on the amended provision.
On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression `other legal proceeding ' must be read ejusdem generis with the preceding words `suit ' and `prosecution ' as they constitute a genus.
In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication 134 proceedings in question did not fall within the expression `other legal proceeding ' employed in section 40 (2) of the as it stood prior to its amendment by 22 of 1973 and therefore, the said procedings were not subject to the limitation prescribed by the said sub section.
Mr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court.
That indeed is true but being a pure question of law we have though it fit to entertain the same.
We therefore, do not entertain this objection.
In the result we allow this appeal and set aside the order passed by the learned Single Judge as well as the Division Bench which affirmed it and dismiss the respondent 's writ petition itself.
We also set aside the order by which the appellant was directed to pay costs.
We restore the adjudication order dated April 4, 1974 and all consequential orders, if any, passed thereunder.
Interim stay granted on August 16, 1979 is vacated and the appellant will be entitled to recover the dues from the security furnished pursuant to that order.
The appeal is allowed accordingly with no order as to costs.
R.S.S. Appeal allowed.
|
The appellant issued a notice calling upon the respondent who was a dealer in tobacco to show cause why duty should not be demanded under Rule 160 of the Central Excise Rules, 1944 on the tobacco removed from his warehouse and not accounted for, and further to show cause why penalty should not be imposed for infraction of the Rules.
The respondent sent a detailed reply, and after hearing him the appellant came to the conclusion that the respondent had evaded payment of duty.
Thereupon the appellant issued a demand notice for the duty payable and further imposed a penalty.
The respondent filed a writ petition in the High Court challenging the order of the appellant.
The learned Single Judge allowed the petition taking the view that the appellant 's action was time barred because under section 40(2) of the no suit, prosecution or other legal proceedings could be instituted for anything done or ordered to be done under the law after the expiration of six months from the accrual of the cause of action.
The Division Bench dismissed the appellant 's appeal.
Before this Court it was inter alia contended on behalf of the appellant that the expression `other legal proceeding ' is preceded by particular words of a certain genus, i.e., `suit ' and `prosecution ', indicating reference to proceedings taken in courts only, and, therefore, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and receive a limited meaning to exclude proceedings of the type in question.
Allowing the appeal of the Revenue, this Court, HELD: (1) The rule of ejusdem generis is generally invoked where 127 the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined.[131G] (2) The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of the rule of ejusdem generis and they may be required to fall in line with the specific things designated by the proceding words.
But unless there is a genus which can be comprehended from the preceding words, there can be question of invoking this rule.
Nor can this rule have any application where the general words precede specific words [132B C] (3) The wide expression `other legal proceeding ' must be read ejusdem generis with the preceding words `suit ' and `prosecution ' as they constitute a genus.
[133H] (4)`Suit ' or `prosecution ' are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one.
[132E F] (5) The penalty and adjudication proceedings in the instant case did not fall within the expression `other legal proceeding ' employed in section 40(2) of the Act, as it stood prior to its amendment by Art.22 of the 1973, and therefore, the said proceedings were not subject to the limitation prescribed by the said sub section.
[ 133H; 134A] Public Prosecutor, Madras vs R. Raju & Anr.
; , ; Universal Cables Ltd. vs union of India, [1977] E.L.T. (J92); Amar Chandra vs Excise Collector, Tripura, ; ; C.C. Industries & Ors.
vs H.N. Ray & Anr., , referred to.
|
ivil Appeal No, 3201 of 1989.
From the Judgement and Order dated 28.2.1989 of the Punjab and Haryana High Court in C.W.P. No. 7769 of 1988.
Dr. N.M. Ghatate and C.V.S. Rao for the Appellants.
P.P.Singh for the Respondent.
The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. Whether a personal hearing is required before disposing of a petition filed under Section 117(2) of The (`Act ' for short) against an order of the Summary Security Force Court? This in short is the question involved in this appeal filed by the Union of India.
The facts that give rise to this appeal may be noted at the outset.
The sole respondent who was working as Mounted Constable in the Border Security Force (`BSF ' for short) was charged for an offence under Section 31(b) of the for extracting a sum of Rs. 14,000 from a person without proper authority.
A chargesheet was issued to the respondent.
The evidence in support of the same was recorded.
Thereafter a Summary Security Force Court as provided under the was constituted and the respondent was put on trial on 17,2.1988.
During the recording of the evidence, though the respondent was given an opportunity to cross examine the witnesses he declined to do so and according to the enquiring authorities, he pleaded guilty and prayed that a lenient view may be taken.
During the trial he was also given an opportunity to examine defence witnesses, if any but he did not do so.
It is also averred that since the respondent pleaded guilty, Summary Security Force Court passed the orders and sentenced him to rigourous imprisonment for one year in civil prison and also to be dismissed from service.
Aggrieved by the said order the respondent preferred a petition under Section 117(2) of the to the Director General, BSF who 185 after going through the petition as well as other records of the case rejected the same as devoid of any merit.
The said decision was informed to the respondent.
Aggrieved by the same, the respondent filed a petition under Articles 226 and 227 of the Constitution of India before the High Court of Punjab & Haryana.
It was urged that there was violation of principles of natural justice e since he had not been heard before disposing of the petition filed under Section 117(2) of the .
The High Court without going into the merits allowed the writ petition and directed a fresh hearing of the petition filed by the respondent in accordance with law after hearing him.
Aggrieved by the saidorder the Union of India has filed the present appeal.
Learned counsel for the appellants submitted that Section 117 (2) of the does not provide for personal hearing and that the courts, which examined the similar provisions in the Army , have held that the personal hearing need not be given particularly having regard to the nature of the act and the post held.
The learned counsel appearing for the respondent, on the other hand, submitted that the statute does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice.
Before we examine the decisions cited by either side, it is necessary to refer to some of the provisions of the and the Army .
The BSF is an armed force of the Union of India constituted under Item 2 of List I of Schedule 7 of the Constitution of India and is primarily connected with the defence of the country.
The preamble states that the is to provide for the constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith.
Section 4 provides for constitution of an Armed Force of the Union called the Border Security Force for ensuring the security of the borders of India and subject to the provisions of the , the Force shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed.
Chapter III deals with offences and Chapter IV with punishments that can be awarded by the Security Force Court.
Chapter VI deals with the constitution of the Security Force Courts and their powers of try the offences punishable under the .
Chapter VII contains the procedure, the witnesses can be summoned and examined.
Section 87 lays down that the Evidence , shall, subject to the provisions of the , apply to all proceedings before the Security Force Courts.
For the purpose of this appeal it may not be necessary to go into the details of this procedure.
As per Section 107 no finding or sentence of a Security 186 Force Court shall be valid except so far as it may be confirmed as provided under the .
Sections 108 and 109 deal with the authorities empowered to confirm the decision of the General Security Force Court or an ordinary Security Force Court.
Under Section 117, the aggrieved person is entitled to file a petition to the concerned authority mentioned therein against the order passed by any Security Force Court.
Section 117 reads as under: "117(1) Any person subject to this who considers himself aggrieved by any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director General, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.
" The next relevant Section is Section 118 which reads thus: "The Central Government, the Director General, or any prescribed officer may annul the proceedings of any Security Force Court on the ground that they are illegal or unjust.
" In the instant case, we are concerned with the post confirmation petition presented under Section 117(2) to the Director General, BSF.
As already mentioned the Director General rejected the same holding that it is devoid of merit without giving any personal hearing.
The petition filed by the respondent under Section 117(2) is marked as Annexure `C ' in this appeal before us.
We have gone through the same and we find that request for personal hearing as such has not been made.
With this background we shall now examine whether it is ob 187 ligatory that a personal hearing should be given and whether there has been violation of principles of natural justice? The doctrine of principles of natural justice and audi alteram partem are part of Article 14 and there are any number of decisions rendred by this Court regarding the scope of this doctrine.
We shall, however, refer to one or two important cases relied upon by the learned counsel for the appellants.
In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 all the earlier important cases are referred to.
Suffice it to say that it is laid down that principles of natural justice apply to administrative orders affecting the rights of citizens.
But it is also observed that: "The audi alteram partem rule may, therefore, by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitute or the urgency of the situation so demands.
But, at the same time, it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands.
It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case.
The Court must make every effort to salvage this cardinal rule to the maximum extend permissible in a given case.
" In State of Haryana vs Ram Krishan and Others, ; the question was whether in a case of premature termination of mining leases by the Government, it was necessary to give an opportunity of hearing.
The Court held that: "Since there is no suggestion in the section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right.
The Section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development.
Not to do so will be violative of the principles of natural justice.
Reference may be made to the observations of this Court in Baldev Singh vs State of Himachal Pradesh, , that where exercise of a power results in civil 188 consequences to citizens, unless the statute specifically rules out the application of natural justice, such rule would apply.
The learned counsel appearing for the Union of India, however, submitted that the courts have not gone to the extent of holding that in every petition or revision by way of representation filed against an order of a Tribunal under special statute should also be given an opportunity of hearing before disposal of the same.
Most of the other decisions cited deal with the question of giving an opportunity before disposal of a petition filed under Section 164(2) of the Army which is in pari materia to Section 117(2) of the .
We may usefully extract Section 164 of the Army which reads thus: "164.
Remedy against order, finding or sentence of court material Any person subject to this who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates.
(2) Any person subject to this who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government,the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit.
" In Som Datt Datta vs Union of India & Ors., ; a question came up whether it was necessary for the confirming authority or upon the Central Government to give reasons while disposing of a petition under Section 164.
It was held that: "Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, 189 we are unable to accept the contention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision." (emphasis supplied) In Union of India vs Jyoti Prakash Mitter, ; a question came up whether an order passed by President acting under article 273 of the Constitution of India is justiciable.
This Court held that the appreciation of the evidence by the President is entirely left to him but the Court will not sit in appeal over the judgement of the President.
Now coming to the question of personal hearing it was further held that: "The President had given ample opportunities at diverse stages to the respondent to make his representations.
All evidence placed before the President when he considered the question as to the age of the respondent was disclosed to him and he respondent was given an opportunity to make his representation thereon.
There is nothing in clause (3) of Article 217 which requires that the Judge whose age is in dispute, should be given a personal hearing by the President.
The President may in appropriate cases in the exercise of his discretion give to the Judge concerned an oral hearing, but he is not bound to do so.
An order made by the President which is declared final by clause (3) of Article 217 is not invalid merely because no oral hearing was given by the President to the Judge concerned".
(emphasis supplied) In Lt. Col.
K.N.S. Sidhu vs The Union of India and Others, All India Service Law Journal, a Division Bench of the Punjab & Haryana High Court has considered this very question and held that the rejection of a representation made under Section 164(2) of the Army without giving a personal hearing does, not suffer from any illegality and after referring to A.K. Gopalan vs State of Madras, ; and Union of India vs Jyoti Prakash Mitter, ; , held that: "From the observations reproduced above, it is abundantly clear that there is no hard and fast rule for the applicability of principles of natural justice and that in each case it has to be definitely ascertained if the statute governing it leaves 190 any discretion for involving their assistance.
" It was further observed that: "The applies to a class of people who are the backbone of the country.
They are governed by the codified law.
Discipline is maintained by resorting to the provisions of the codified law.
There would hardly be any justification for importing the principles of natural justice in a completely codified statute".
In Captain Harish Uppal vs Union of India and Others, ; also the question whether an opportunity to be heard is necessary before confirmation under Section 164 of the Army , was considered and it was held that: "The contention that Brig.
Bhilla should either have given a hearing to the petitioner or the Chief of Army Staff should have given a hearing to the petitioner before confirming the subsequent sentence by the court martial is not a requirement under the .
While it can be at least said that there is some semblance of reasonableness in the contention that before he ordered what in effect was an upward revision of the sentence passed on the petitioner, he should have been given a hearing, to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the court martial, is a contention which cannot be accepted.
To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the court martial, a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed Personnel.
It is not a requirement of the principles of natural justice.
Indeed when he was informed that the subsequent sentence passed on him had been sent to the Chief of the Army Staff for confirmation it was open to the petitioner to have availed himself of the remedy provided under Section 164 of presenting a petition to the confirming officer, i.e. the Chief of the Army Staff in this case.
He does not appear to have done so." (emphasis supplied) In this decision this Court has held in unambiguous terms that the confirming authority need not give a personal hearing and this ratio applies with equal force to a post confirmation petition under Section 164(2) and consequently to an application under Section 117(2) of the .
In a recent decision in Shri S.N. Mukherjee vs Union of India, JT (1990) 3 630 a Constitution bench of this Court having noted the principle that requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities, however, proceeded to hold that "There is nothing in the language of sub section (2) of Section 164 which indicates that recording of reasons for an order passed on the post confirmation petition was necessary".
In arriving at this finding, the Bench referred to the ratio laid down in Som Datt Datt 's case.
At this stage we may refer to another decision of this Court in Union of India vs cor.
J.N. Sinha and Anr., [1971] 1 SCR 791 wherein it is held: "Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights.
As observed by this Court in Kraipak and Ors.
vs Union of India, AIR 1970 SC 150, "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law validly made.
In other words they do not supplant the law but supplement it.
xx xx xx Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power".
From the above discussion it emerges that in cases of special enactments like Army , all the principles of natural justice cannot be imported.
The same ration applies to a petition under Section 117(2) of the also.
We may also point out her that Chapter XIII consisting of Rules 167 to 169 of the BSF Rules deals with petitions filed under Section 117 of the .
Even in them there is nothing to indicate that a hearing has to be given before disposal of a petition.
192 As noted above, under Section 117(2) the respondent in only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice.
The respondent has been tried by observing the due process of law and the verdict of the Security Force Court was confirmed and it is only a post confirmation petition that was filed under Section 117(2) of the and authority which disposed of the same is not a court any every order passed administratively cannot be subjected to the rigours of principles of natural justice.
For the aforesaid reasons, the order of the High Court is set aside and the matter is remitted back to the High Court for disposal on merits.
The appeal is accordingly allowed.
In the circumstances of the case, there will be no order as to costs.
R.P. Appeal allowed.
|
The respondent in the appeal, a Mounted Constable in the Border Security Force, was charged for an offence under section 31(b) of the for extracting a sum of money from a person without proper authority.
A charge sheet was issued, evidence in support of the same was recorded, and thereafter a Summary Security Force Court as provided under the Act was constituted and the respondent was put on trial.
During the recording of evidence, the respondent was given an opportunity to cross examine prosecution witnesses, but he declined, pleaded guilty and prayed for a lenient view to be taken.
The Summary Security Force Court passed an order sentencing him to rigorous imprisonment for one year civil prison and also to be dismissed from service.
Aggrieved by the aforesaid order, the respondent preferred a petition under section 117(2) of the Act to the Director General, B.S.F., who after going through the petition and the records of the case, rejected the same as devoid of any merit.
The respondent thereupon filed a petition under Articles 226 and 227 of the Constitution before the High Court urging that there was violation of the principles of natural justice since he had not been heard before disposing of his petition.
The High Court allowed the writ petition, and directed fresh hearing of the petition of the respondent, after giving him an opportunity of being heard.
The Union of India appealed to this Court against the decision of the High Court contending that section 117(2) of the Act does not provide for 183 a personal hearing.
The appeal was contested by the respondent contending that as the ` does not expressly exclude a personal hearing and that an employee cannot be condemned without observing the principles of natural justice.
On the question: whether a personal hearing is required before disposing of a petition under s.117(2) of the against an order of the Summary Security Force Court, Allowing the appeal, this Court, HELD: 1.
The doctrine of principles of natural justice and audi alteram partem are part of Article 14 of the Construction.
Although principles of natural justice apply to administrative orders affecting the rights of citizen yet it is also clear that in cases of special enactments, like Army Act, all the principles of natural justice cannot be imported.
The same ratio applies to a petition under section 117(2) of the also.
[187A B; 191G] 1.2 Chapter XIII consisting of Rules 167 to 169 of the Border Security Force Rules deals with petitions filed under s.117 of the .
Even in them there is nothing to indicate that a hearing has to be given disposal of a petition.
[191G H] Maneka Gandhi vs Union of India, [1978] 2 SCR 621; Som Datt Datta vs Union of India & Ors., [1969] 2SCR 177; Union of India vs Jyoti Prakash Mitter,[1971] 1 SCC 396; Captain Harish Uppal vs Union of Inida and Others, ; ; Shri S.N. Mukherjee vs Union of India, JT 1990 (3) 630 and Union of India vs Col. J.N. Sinha and Anr.
,[1971], 1 SCR 791, relied on.
Lt. Col.
K.N.S. Sidhu vs The Union of India and Others, All India Service Law Journal 1977 page 721, referred to.
2.1 Under section 117(2) of the , the person aggrieved is only entitled to file a petition but the disposal of such a petition does not attract principles of natural justice.
[192A] 2.2 The authority disposing of the petition under section 117(2) is not a court, and every order passed administratively cannot be subjected to the rigours of principles of natural justice.
[192B] 3.
In the instant case, the respondent had been tried by observing 184 the due process of law, and the verdict of the Summary Security Force Court was confirmed and it was only a post confirmation petition that was filed under s.117(2) of the .
The order was passed by an authority and not by a court and every order passed administratively could not be subjected to the rigours of principles of natural justice.
[192A B]
|
Civil Appeal No. 1046 of 1982.
From the Order dated 20.9.1980 of the Madhya Pradesh High Court in M.P. No. 84 of 1978.
Dr. N.M. Ghatate, S.V. Deshpande and S.K. Agnihotri for the Appellants.
Aman Vachher, S.K. mehta, Mrs. Anjali Verma, D.N. Mishra (for JBD & Co.) and Ashok Srivastava for the Respondents.
The Judgment of the Court was delivered by T.K. THOMMEN, J.
This appeal by the State of Madhya 176 Pradesh arises from the Order of the Madhya Pradesh High Court in Misc.
Petition No.84 of 1978 quashing Order dated 1.10.1977 of the Additional Collector, Gwalior, whereby he initiated proceedings against the 3rd respondent, the Gwalior Dairy Limited (hereinafter called `the Company ') under section 182(2)(i) of the M.P. Land Revenue Code, 1959 (`the Code ').
Respondent Nos.
1,2 and 4 are shareholders of the third respondent.
The High Court by the impugned Order held that the Company was not a Government lessee within the meaning of section 181 [read with section 2(h)] and was, therefore, not liable to be proceeded against in terms of section 182.
The Order of the Additional Collector, Gwalior, which was impugned in the High Court, was made consequent on the failure of the Company to pay the rent agreed upon between the Government and the Company subsequent to the unconditional withdrawal by the Company of its Civil Appeal No. 299 of 1967 which was pending in this Court.
That appeal had been brought to this Court by the Company against an earlier judgement of the High Court dated 30.6.1`964 in First Appeal No. 1 of 1961 whereby the High Court, confirming the judgement of the trial court and dismissing the Company 's appeal, held that the land admeasuring 495.05 acres was held by the Company in terms of the lease granted by the State and the Company was not a `pakka ' tenant and did not enjoy the status of a " Gair Maurusi" tenant.
The Company entered into a contract of lease with the Gwalior State Government (Sanitary Engineering Department) for a period of one year in Samvat 1999.
The lease was extended for a further period of ten years in Samvat 2000.
When proceedings were initiated on 16.7.1952 to eject the Company, the Company filed Suit No. 14 of 1960 for declaration of title and perpetual injunction.
Issue No. 1(1) in that Suit was in the following words: "Whether the plaintiff in accordance with paras 5 & 6 of the Plaint was a `gair Maurusi tenant ' and now by virtue of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act of Samwat 2007 has become a `Pakka Tenant '.
If so, what is its effect on the suit?" That issue was answered in the negative.
The Court held that the Company did not enjoy the status of Gair Maurusi tenant and that it had not become a `pakka ' tenant under section 54(vii) of Part II of Act 177 No. 66 of 1950 in respect of the land in question.
The Court held that the Company was "a Government lessee under section 181 of the M.P. Land Revenue Code, 1959 with the rights and liabilities enumerated in section 182".
It was also held that the Company was not an occupancy tenant under section 185 of the Code as it had not become an ordinary tenant earlier in Madhya Bharat under Act No. 66 of 1950.
This judgement, as stated earlier, was affirmed by the High Court by its judgement dated 30.6.1964 in First Appeal No. 1 of 1961.
The High Court observed that the land held by the Company under the lease was neither zamindari nor ryotwari land.
The Zamindari Abolition Act did not apply to the land as it had become vested in the State long prior to the Act.
The High Court observed: ". .the lands comprised in the Gwalior Sewage Farm were never notified to be a Ryotwari village.
The lands which have been acquired by the Gwalior State in connection with the Gwalior Sewage Farm could not, after their acquisition for a public purpose be notified to be part of a Ryotwari village. the lands were not `Pandat ' lands nor were the lands included in Ryotwari village.
Special leases granted by the erstwhile Gwalior State in respect of such lands as had been acquired for a public purpose, namely construction of a sewage system were governed not by any law for the time being in force but by the terms of lease in each case.
I have already explained above that to these lands the provisions of the Zamindari Abolition Act did not apply, since they were already held by the State when that came into force. the defendant (the State) has been successful in showing that the plaintiff (the Company) never acquired the status of a Gair Maurusi tenant in respect of the land in dispute at any time prior to the coming into force of the Act No. 66 of 1950 and that he could not, by virtue of the provisions of that Act become a Pukka tenant thereof".
It was from that judgement that the Company had brought to this Court Civil Appeal No. 299 of 1967 and that appeal was, as stated earlier, unconditionally withdrawn by the Company in 1971.
Subsequently, the State entered into an agreement with the Company to grant a fresh lease for a period of ten years from 9.2.1971 subject to the payment of enhanced rent as agreed upon between the parties.
Since the Company failed to pay the agreed rents and thus contravened the conditions of the lease, proceedings were initiated by the 178 Additional Collector by his Order dated 1.10.1977 for eviction of the Company from the land in question.
That Order was made under section 182(2)(i) of the Code.
It was that Order which was quashed by the High Court by its impugned Order dated 20.9.1980.
The High Court held that the lease in question was not covered by section 181 of the Code and that the Company could not be evicted by the summary proceeding provided for under that section.
As stated earlier, the High Court had, in the earlier proceeding held that the Company was not a `pakka ' tenant.
That judgement of the High Court became by the unconditional withdrawal of the appeal filed in this Court against it.
The Madhya Pradesh Land Revenue and Tenancy Act, Samvat 2007 (Act No 66 of 1950), which was the law in force until repealed by the M.P. Land Revenue Code, 1959, defined "pakka tenant" as follows: "section 54 (vii).
Pakka tenant means a tenant who has been or whose predecessor in interest had been lawfully recorded in respect of his holding as a `Ryot Pattedar ', `Mamuli Maurusi ' `Gair Maurusi ', and `Pukhta Maurusi ' when this Act comes into force or who may in future be duly recognised as such by a competent authority.
Explanation The term `Pukhta Maurusi ' included Istmurardar tenants, Malikana Haq holder tenants, Hakkiyat Mutafarrikat Sharah Muayyana and Sakitul Mikiyat tenants".
An `ordinary tenant ' is defined by Act No. 66 of 1950 as "a tenant other than a Pakka tenant and shall not include a sub tenant".
The position, therefore, was that, in terms of Act No. 66 of 1950, the Company was not a pakka tenant, as found by the High Court in the earlier judgement, and, therefore, it was, according to the said Act, an ordinary tenant.
The High Court had found in the earlier proceeding that the land in question was held by the Company under lease from the Government after it had been acquired by the Government for a public purpose of the State.
The question, therefore, is whether the Company was, as found by the Additional Collector, a Government lessee within the meaning of the Code.
It is to be noticed that subsequent to the withdrawal of the appeal from this Court, fresh terms were agreed upon between the Company and the Government to enable the Com 179 pany to remain in possession of the land as a lessee.
The Company is thus a person holding the land from the State Government.
This is so whether or not the Company is deemed to be holding over under the old lease or holding, upon termination of that lease, under and in terms of the fresh conditions agreed upon between the parties to enable the Company to remain in possession of the land as a lessee.
In either event, the Company has been holding the land from the State.
It is not and cannot be disputed that the original lease was obtained from the predecessor State and the Company continued to remain in possession of the land under the newly stipulated terms agreed upon between the Company and the successor State, namely, the Madhya Pradesh State.
A `Government Lessee ' is defined under the M.P. Land Revenue Code, 1959 as "a person holding land from the State Government under section 181", Section 181 of the Code reads: "181.
Government Lessees.
(1) Every person who holds land from the State Government or to whom a right to occupy land is granted by the State Government or the Collector and who is not entitled to hold land as a Bhumiswami shall be called a Government lessee in respect of such land.
(2) Every person who at the coming into force of this Code (a) hold any land in the Madhya Bharat region as an ordinary tenant as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat2007 (66 of 1950); or (b). . . . . . . . . (c). . . . . . . . . shall be deemed to be a Government lessee in respect of such land".
These provisions show that whether or not the Company has been holding the land in terms of the original lease or under the newly stipulated terms of the lease, the Company has been holding the land 180 from the State Government and it has never been an ordinary terms as defined in the Madhya Bharat Act No. 66 of 1950.
Accordingly whether considered in terms of sub section (1) or sub section (2) of section 181, the Company has been at all material times a Government lessee in respect of the land in question.
Accordingly, section 182 of the Code is attracted.
That section reads: "182.
Rights and liabilities of Government lessee (1) A Government lessee shall, subject to any express provision in this Code, hold his land in accordance with the terms and conditions of the grant, which shall be deemed to be a grant within the meaning of the (XV of 1985).
(2) A Government lessee may be ejected from his land by order of a Revenue Officer on one or more of the following grounds, namely: (i) that he has failed to pay the rent for a period of three months from the date on which it became due; or (ii) that he has used such land for purpose other than for which it was granted; or (iii) that the term of his lease has expired or (iv) that he has contravened any of the terms and conditions of the grant: Provided that no order for ejectment of a Government lessee under this sub section shall be passed without giving him an opportunity of being heard in his defence".
It was in terms of sub section 2(i) of section 182 that the Additional Collector made his order for eviction of the Company.
The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings.
His finding shows that large amounts are due and payable by the Company as rent and that the rents have remained unpaid for a period far in excess of three months from the dates on which they became due.
In the circumstances, the Additional Collector was well justified in having recourse to the proceeding prescribed under section 182 of the 181 Code.
The finding of the High Court to the contrary was, in our view, totally unjustified and opposed to law.
In the circumstances, the impugned Order of the High Court dated 20.9.1980 in Misc.
Petition No 84 of 1978 is set aside.
The Order of the Additional Collector dated 1.10.1977 in Case No. 1 75 76A 39: 182 shall stand restored.
The appeal by the State is allowed with costs throughout.
V.P.R. Appeal allowed.
|
The Company Respondent No. 3 entered into a contract of lease with the State Government for a period of one year and later it was extended for a further period of ten years.
When proceedings were initiated on 16.7.1952 to eject the Company, the Company filed suit for declaration of title and perpetual injunction.
The trial Court holding that the Company did not become a `pakka ' tenant under Section 54(vii) of Part II of Act No. 66 of 1950 in respect of the suit land and that the Company was "a Government lessee under section 181 of the M.P. Land Revenue Code, 1959, and was not an occupancy tenant under section 185 of the Code, dismissed the suit.
This judgment, was affirmed by the High Court in First appeal, observing that the land held by the Company under the lease was neither zamindari nor ryotwari land.
Against that judgment, the Company filed an appeal in this Court which was withdrawn in 1971.
Subsequently, the State entered into an agreement with the Company to grant a fresh lease for a period of ten years from 9.2.1971 subject to the payment of enhanced rent as agreed upon between the parities.
Since the Company failed to pay the agreed rents and contravened the conditions of the lease, proceedings were initiated under Section 182(2)(i) of the Code, for eviction of the Company from the land in question.
175 Eviction order was quashed by the High Court holding that the lease in question was not covered by section 181 of the Code and that the Company could not be evicted by the summary proceeding provided for under that section, against which the appeal has been filed.
Allowing the appeal, this Court, HELD: 1.
A `Government lessee ' is defined under the M.P. land Revenue Code, 1959 as "a person holding land from the State Government under section 181".
[178E] 2.
As per the provisions in section 181 of the M.P. Land Revenue Code, 1959 whether or not the company has been holding the land in terms of the original lease or under the newly stipulated terms of the lease, the Company has been holding the land from the State Government and it has never been an ordinary tenant as defined in the Madhya Bharat Act No. 66 of 1950.
Accordingly, whether considered in term of sub section (1) or sub section (2) of section 181, the Company has been at all material times a Government lessee in respect of the land in question.
[179 G 180 A] 3.
It was in terms of sub section 2(i) of section 182 that the Additional Collector made his Order for eviction of the Company.
The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings.
Large amounts are due and payable by the Company as rent.
In the circumstances, the Additional Collector was well justified in having recourse to the proceeding prescribed under section 182 of the Code.
[180 F 181 A]
|
Civil Appeal No. 578 of 1991.
From the Judgment and Order dated 8.11.1990 of the Bombay High Court in W. P. No. 4497 of 1991.
Ashok Desai, N. Serwai, Dilip Udeshi, P.H. Parekh and J.P. Pathak for the Appellants.
U.R. Lalit, K.K. Singhvi and Soli J. Sorabjee, A.M. Khanwilkar, Ravinder Narain, section Ganesh, D.N. Misra and section Kachwaha, S.K. Dholakia and A.S. Bhasme for the Respondents.
K.K. Venugopal, E.C. Agrawala, Ashwini Kumar, Ms. Purnima Sethi and A.V. Pilli for the Applicant.
The Judgment of the Court was delivered by KANIA, J.
This Special Leave Petition is directed against the judgment of a Division Bench of the Bombay High Court in Writ Petition No. 4497 of 1990.
The High Court allowed the said writ petition and struck down a communication from the Bombay Municipal Corporation.
respondent No. 2 herein, informing the petitioners in the said writ petition, who are arrayed as respondents nos.
3 to 13 before us, that their application for permission to develop the property, namely, the land in question situated at Village Balkum near Thane, was rejected in view of the representations submitted to the Government by the owners of chemical factories situated in the said village, who are the appellants/petitioners herein that no building construction permission should be granted within a certain distance from the said factories.
The petitioners in the Special Leave Petition are some of the said chemical factories.
They were not joined in the writ petition as respondents and have prayed for leave to file the Special Leave Petition on the ground that the judgment adversely affects them and they are aggrieved by the same.
Permission is granted.
Leave is granted.
Counsel heard.
We find that appellants can be said to be parties aggrieved by the impugned judgment, even if they are not regarded as necessary parties 252 in the writ petition.
In the facts and circumstances of the case, we find that there is no need to set aside the impugned judgment of the Bombay High Court at the instance of the appellants.
The appellants are.
however, given liberty to file a review petition before the Bombay High Court for reviewing the impugned judgment, within a period of four weeks from today.
9 In our opinion, it is proper that the entire controversy to which the judgment relates should be determined in the light of the submissions which may be made by the appellants.
In these circumstances, we direct that the review petition, if filed, shall be entertained by the Bombay High Court and the appellants will be given a hearing as if the matter were heard afresh as far as they are concerned.
It is clarified that the hearing of the review application will not be confined to the normal grounds on which a review can be sought but the entire controversy will be regarded as open as between the appellants herein and the respondents.
The interim order made by this Court on January 8, 1991 will continue to remain in operation till the review petition is decided by the High Court.
However, it will be open for the High Court to vary or vacate the interim order on appropriate applications made to it by any of the parties or by any of the interveners here.
If the review petition is not filed within the said period of four weeks, the appeal shall stand dismissed and all interim orders passed by us shall be deemed to be vacated.
In our opinion, the review petition deserves to be disposed of with expedition and we would, therefore, request the High Court to dispose of the review petition, if filed as aforestated, within four months from today and in any event, by the 30th September, 1991.
The matter shall now be placed before learned Chief Justice of the Bombay High Court for passing appropriate directions.
The appeal is disposed of as aforestated with no order as to costs.
V.P.R. Appeal disposed of.
|
A writ petition was filed in the High Court challenging the communication of Respondent No. 2 Corporation, directing that no development be made in the disputed land, and no building construction permitted within a certain distance from the chemical factories in view of the representations of the owners of the factories.
The High Court allowed the writ petition and struck down the aforesaid communication.
Being aggrieved and adversely affected by the judgment, some of the owners of the chemical factories, even though they were not parties in the writ petition, filed a special leave petition.
Disposing of the Appeal, this Court, HELD: (1) Appellants can be said to be parties aggrieved by the judgment, even if they are not regarded as necessary parties in the writ petition.
[251G 252A] (2) In the facts and circumstances of the case, there is no need to set aside the judgment of the High Court at the instance of the appellants.
They are, given liberty to file a review petition before the High Court.
The review petition, if filed, shall be entertained by the High Court and the appellants given a hearing as if the matters were heard afresh as far as they are concerned.
It is clarified that the review application will not be confined to the normal grounds on which a review can be sought but 251 the entire controversy will be regarded as open as between the appellants and the respondents.
[252A D]
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Special Leave Petition No.12541 of 1990.
From the Judgement and Order dated 21.8.1990 of the Bombay High Court in W.P. No. 2677 and 4128 of 1983.
U.R. Lalit, A.M. Khanwilkar and Mrs. V.D. Khanna for the Petitioner.
M.C. Bhandare, V.N. Ganpule, Satish K. Agnihotri and Mrs. Suman B. Rastogi for the Respondent.
The Judgement of the Court was delivered by K. JAGANNATHA SHETTY, J. The shop premises belonging 154 to the respondent landlady was taken on rent by the petitioner for business purposes.
The premises are within the scope of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (`The Bombay Rent Act ').
The petitioner has been carrying on business in sweet meats and farsen.
The landlady brought action to recover possession of the premises under Section 13(1)(c) on the ground that the tenant has been convicted of using the premises.
It is not in dispute that the tenant was convicted on three occasions, first in 1968 for selling adulterated Desi butter and second, in 1972 for selling sugar garlands coloured with meantanil yellow a coaltar dye which is a prohibited colouring agent.
In the second judgement of conviction, it has been stated that the tenant had admitted two previous convictions and in one of the cases he was sentenced to six months simple imprisonment and a fine of Rs. 1,000.
All the convictions and sentences were under the Prevention of Food Adulteration Act.
The Bomaby High Court has accepted the claim of the landlady and ordered eviction under Section 13(1)(c).
The tenant seeks leave to appeal against the order of the Bomaby High Court.
Section 13(1)(c) of the Bombay Rent Act reads: "13(1) Notwithstanding anything contained in the Act, but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied, (c) that the tenant or any persons residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers, or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes; or that the tenant has in respect of the premises been convicted of an offence of contravention of any provision of clause (a) of sub section (1) of section 394 or of Section 394 A of the Bombay Municipal Corporation Act.
" Underlining is ours Section 13(1)(c) inter alia, provides that the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant or any person residing with the tenant has been guilty of conduct or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes etc.
155 Counsel for the tenant submits that the expression "convicted of using the premises" must be limited to offences which involve ,the user of the premises and user of the premises must by itself be an offence under law.
By way of illustration, reference was made to the Immoral Traffic (Prevention)Act, 1956 and the Bomaby Prevention of Gambling Act, 1887 whereunder the use of the premises for illegal purposes has been defined as an offence and punishable.
It is only such conviction, counsel contends that it would expose the tenant to the risk of ejectment under Section 13(1)(c).
It is also argued that Section 13(1)(c) does not cover non residential premises and it covers only the residential premises.
We will consider the second question first.
The contention is based on the term used in clause(c), namely "that the tenant or any person residing with the tenant has been. " and it is said that the expression "residing with the tenant" indicates that clause (c) is applicable only to residential premises.
The essence of the submission is that business premises are not used for residence.
A Division Bench ofthe Bombay High Court in a separate judgement connected with this case has not accepted that interpretation.
It has expressed the view that clause (c), covers equally residential and non residential premises and the expression "residing with the tenant" used in clause (c) only indicates that the offence contemplated in clause(c) could be committed by the tenant or any person residing with tenant.
We concur with this view.
Section 13(1)(c) applies to any premises.
Section 5(8) defines `premises ' to mean amongst others, any building or part of a building let or given on licence separately other than a farm building.
If clause (c) is not applicable to business premises, there is no other similar provision in the Bombay Rent Act relating to the business premises.
The consequence would be that the tenant in business premises could use the premises for committing any offence or he could commit nuisance and annoyance to the adjoining or neighbouring occupiers and yet claim that he is not liable to be evicted on that grounds.
Whereas, the tenant of residential premises would not be able to commit such offence without the penalty of eviction.
Such an interpretation would render the Section vulnerable to attack under Article 14 of the Constitution.
We must avoid such construction.
Section 13(1)(c), in our opinion, covers both residential as well as non residential premises.
This takes us to the more difficult question, whether the offence leading to conviction which exposes the tenant to the risk of ejectment should involve the user of premises, or is to enough if the tenant was 156 convicted for an offence committed in the premises although the conviction is not of using the premises.
Counsel for the tenant contends thatthe Section 13(1)(c) means the former.
But the acceptance of such construction would unreasonably narrow down the Section defeating the very object of the provision, since there are very few crimes that can properly be so described and brought within its operation.
We therefore, reject the contention.
But at the same time the expression "convicted of using the premises" cannot be given too liberal construction so as to cover every case or conviction of ,the tenant.
In this regard, we have a useful guidance from the decision in section Schneiders and Sons Ltd. vs Abrahams, [1925]1 KB 301, where a similar question arose for consideration.
There the tenant was convicted of an offence under Section 33 of the Larceny Act, 1916 of receiving at the demised premises the property of the landlord well knowing the same to have been stolen.
The landlord brought an action to recover possession of the premises under Section 4 of the Rent & Mortgage Interest Restrictions Act, 1923.
Section 4 provided that no judgement for the recovery of possession of any house to which the Act applies shall be given "unless the tenant. . has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose . ." Bankers L.J. explaining the scope of the expression "convicted of using the premises" inter alia, observed that the said expression cannot be given a strictly technical construction and that would exclude so many offences which would seem naturally to fall within the purview of the Section.
He however, emphasised that it is necessary to show that the tenant has taken advantage of his tenancy of the premises and of the opportunity they afford for committing the offence.
He also dealt with the scope of the expression "using the premises", whether it requires something more than a single act of user or a continuous, frequent or repeated use.
On this aspect, he said that "it may be that the mere fact of a crime being committed on the premises would not constitute a user of the premises by the tenant for an illegal purpose; for example, if the tenant was convicted of an assault upon some one who happened to be on the premises in the occupation of the tenant, and if that were the only evidence, I doubt whether the tenant could be said to have been convicted of "using the premises for an. illegal purpose within the meaning of Section 4".
But if the tenant used the premises as coiner 's den or as a deposit for stolen goods, a single instance of such user seems to me quite enough to satisfy the language of the statute".
Scrutton, L.J. while agreeing with the above views has added that Section 4 was not intended to cover the conviction of a crime with which the premises have nothing to do beyond merely being the scene of its commission.
Atkin, L.J. has also reiterated the above views.
157 With due regard to these principles and giving the matter the best consideration.
It seems to us that Section 13(1)(c) was not intended to be a moral code of conduct for the tenant.
For each and every offence committed at the premises, the tenant cannot be exposed to the risk of eviction.
The crime .may be forced upon the tenant at the premises by third parties.
There may be casual or incidental crimes.
There may be technical offences connected with the trade or licence to trade.
There may be crimes where use of the premises has nothing to do except being the scene of the offence.
All such cases cannot satisfy the requirements of Section 13(1)(c).
It is necessary as Bankers, L.J. has observed in the Schneiders case that the tenant must take advantage of his tenacy of the premises and of the opportunity they afford for committing the crime.
Only such crimes could fall within the scope of Section 13(1)(c).
However, there need not be continuous or repeated user of the premises for committing such crimes.
In the instant case, the tenant used the premises for carrying out illegal sale of adulterated food along with his usual business in sweet meats and farsen.
Indeed, he has used the premises deliberately and taken advantage of his tenancy for committing the offences in the course of his trade.
He cannot, therefore, legitimately contend that he is not entitled to be evicted under Section 13(1)(c).
In this view of the matter, we dismiss this petition, but we make no order as to costs.
V.P.R. Petition dismissed.
|
Respondent Landlady started an eviction proceeding under Section 13(1)(c) of the Bombay Rent Act against the petitioner tenant, running a shop, selling sweet meats and farsen on the tenanted premises, as he was convicted twice under the Prevention of Food Adulteration Act.
Accepting claim of the land lady the High Court ordered eviction.
Tenant contending that "convicted of using the premises" in Section 13(1)(c) be limited to offences involving the user of the premises that the provision does not cover non residential premises, filed the Special Leave Petition.
Dismissing the petition, this Court, HELD: 1.
Section 13(1)(c) covers both residential as well as non residential premises.
If clause (c) is not applicable to business premises, there is no other similar provision in the Bombay Rent Act relating to the business premises.
The consequence would be that the tenant in business premises could use the premises for committing any offence or he could commit nuisance and annoyance to the adjoining or neighbouring occupiers and yet claim that he is not liable to be evicted on that grounds.
Whereas, the tenant of residential premises would not be able to commit such offence without the penalty of eviction.
Such an interpretation would render the Section vulnerable to attack under Article 14 of the Constitution.
[155D G].
153 2.
The expression "convicted of using the premises:" cannot be given too liberal construction so as to cover every case of conviction of the tenant.[156B] 3.
Section 13(1)(c) was not intended to be a moral code of conduct for the tenant.
For each and every offence committed at the premises, the tenant cannot be exposed to the risk of eviction.
The crime may be forced upon the tenant at the premises by third parties.
There may be casual or incidental crimes.
There may be technical offences connected with the trade or licence to trade.
There may be crimes where use of the premises has nothing to do except being the scene of the offence.
All such cases cannot satisfy the requirements of Section 13(1)(c).
[157A B] 4.
The tenant must take advantage of his tenancy of the premises and of the opportunity they afford for permitting the crime.
Only such crimes could fall within the scope of Section 13(1)(c).
There need not be continuous for repeated user of the premises for committing such crimes.
[157B C] [In the instant case, the tenant used the premises for carrying out illegal sale of adulterated food along with his usual business in sweet meats and farsen.
He used the premises deliberately and taken advantage of his tenancy for committing the offences in the course of his trade.
He can be evicted under Section 13(1)(c).] [157C D] section Schneiders and Sons Ltd. vs Abrahams,
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: Criminal Appeal Nos. 810 811 of 1989.
From the Judgement and Order dated 22.9.1989 of the Delhi High Court in Crl.
W.P. No. 622 of 1988 and Crl.
Main Petition No. 1132 of 1988.
J.S. Arora, Sudhansu section Das, Satish Agrawal and N.P. Kaushik for the Appellant.
V.C. Mahajan, A.K. Ganguli Ashok Bhan, A. Subhashini, P.P. Tripathi and S.K. Sabharwal for the Respondents.
The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. The High Court of Delhi by a common order in two petitions filed under The Narcotic Drugs & Psychtropic Substances Act, 1985 (`NDPS Act ' for short) held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Section 37 of the NDPS Act are not applicable to the High Court.
Aggrieved by the said order, the Narcotic Control Bureau has filed these two appeals.
The peritioners before the High Court in two different cases were arrested for offences under various Sections of the NDPS Act.
They were refused bail and remanded to judicial custody.
On the basis of the report the Magistrate concerned took cognizance and remanded them to judicial custody.
The petitioners filed a writ petition as well as a criminal miscellaneous petition seeking bail firstly on the ground that they are entitled to be released on bail as required under Section 167(2) of the Code of Criminal Procedure as the charge sheet was filed at a belated stage and secondly on the ground of illness.
A learned Single Judge referred this matter to a Division Bench and the Division Bench by the impugned order held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as 142 fetters on the High Court in exercise of powers under Section 439 Cr.
P.C. for granting bail.
The only limited question to be decided in these appeals is whether the view taken by the High Court is right or wrong and we may also mention that leave was granted only to this limited extent.
The learned counsel appearing for,the appellants submitted that the High Court has misconstrued the provisions of Section 36 A and 37 of the NDPS Act and that latter Section as amended starts with the non obstante clause limiting the scope of provisions of the Cr.
P.C. in the matter of granting bail and as such the High Court has no untremelled powers to grant bail inasmuch as the provisions of the amended Section 37 of the NDPS Act override the provisions of Section 439 Cr.
We may at this stage note the relevant provisions of NDPS Act.
The preamble to the NDPS Act shows that the object of the Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotrophic substances etc.
Sections 15 to 35 deal with various offences and penalties.
Section 36 provides for constitution of Special Courts and empower the Government to constitute Special Courts and a person shall not be qualified for appointment as a Judge of the Special Court unless he is immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.
Section 36 A enumerates the offences triable by Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate.
Sub section (b) of Section 36 A lays down that if the Magistrate to whom an accused is forwarded under Section 167 Cr. P.C., considers that the detention of such person for fifteen days is unnecessary he shall forward him to the Special Court having jurisdiction who shall take cognizance and proceed with the trial.
Sub section (3) of Section 36 A reads thus: "Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub section (1) of that section as if the reference to "magistrate" in that section included also a reference to a "Special Court" constituted under Section 36.
" 143 Now let us note Section 37 as amended in the year 1989 and the same is in the following terms: "37.
Offences to be cognizable and non bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless (i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The ,limitations on granting of bail specified in clause (b) of sub section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the law being in force on granting of bail.
" Now it becomes necessary to extract Section 439 Cr.
P. C. which reads as under: "439.
Special powers of the High Court or Court of Section regarding bail (1) A High Court or Court of Session may direct (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub section (3) of Section 437 , may impose any condition which it considers necessary for the purposes mentioned in that sub section; (b) that any condition imposed by a magistrate when releasing any person on bail be set aside or modified; Provided that the High Court or the Court of Session shall, 144 before granting bail to a person who is accused on anoffence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public prosecutor unless it is, for reason to be recorded in writing , of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
" The High Court having taken into consideration sub section (3) of Section 36 A took the view that the limitations placed on the Special Courts cannot be read as fetters in its exercise of the powers under Section 439 Cr.
In this context, the Division Bench referred to to sub sections(8) and (9) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ( 'TADA Act ' for short) which are similar to Section 37 of NDPS Act and also relied on a judgment of this Court in Usmanbhai Dawoodbhai Memon and Others vs State of Gujarat, ; a case which arose under the TADA Act.
We shall refer to this judgment at a later stage after analysing the scope and effect of Section 37 of NDPS Act.
Section 37 as amended starts with a non obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied.
The nDPS Act is a special enactment as already noted it was enacted with a view to make stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances.
The being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.
P.C. regarding bail, in our view, it cannot be held that the High Court 's powers to grant bail under Section 439 Cr.
P.C. are not subject to the limitation mentioned under Section 37 of NDPS Act.
The non obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail.
In case of inconistency between Section 439 Cr.
P.C. and Section 37 of the NDPS Act, Section 37 prevails.
In this context Section 4 Cr.
P.C. may be noted which read thus: 145 "(4) Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provision hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
" It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr.
P.C. should be subject to such special enactment.
In interpretating the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.
In Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India & Others, regarding the mode of interpretation the Supreme Court observed as follows: "The dominant purpose in construing a statute is to ascertain the intention of Parliament.
One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity.
" As already noted, Section 37 of the nDPS Act starts with a non obstante clause stating that notwithstanding anything contained in the Conde of Criminal Procedure, 1973 no personaccused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied.
Consequently the power to grant bail under any of the provisions of Cr.
P.C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.
We shall now refer to some of the decisions of the Court dealing with the analogous provision in other special enactments.
Rule 184 of the Defence and Internal Security of India Rules, 1971 which is analogous to Sec.
37 of the NDPS Act runs as follows: 146 "Rule 184.
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898) no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless (a) the prosecution has been given an opportunity to opposed the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may be notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.
" The Rule commences with a non obstante clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules.
it imposes fetters on the exercise of the power of granting bail in certain kinds of cases.
In Balchand Jain vs State of Madhya Pradesh, ; a question arose whether the power to grant anticipatory bail under Section 438 can stand side by side with Rule 184 of whether former provision is overridden by the latter.
This Court held that Rule 184 does not stand in the way of Court of Session or High Court granting anticipatory bail on the ground that the two provision operate at two different stages.
Of course, in the instant case, we are not concerned with Section 438 but the observation regarding the scope of Rule 184 are relevant which read thus: "But even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the Court while exercising its power to grant 'anticipatory bail ' under Section 438.
The Rule making authority obviously though offences arising out of contravention of Rules and orders made there under were serious offences as they might imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no person accused or convicted or contravention of any Rule or order made under the Rules, shall be 147 released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a Rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention.
If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant 'anticipatory bail 'to a person apprehending arrest on such accusation, though they would not be strictly applicable." (emphasis supplied) Fazal Ali, J. in his concurring judgment also held thus: "(4)_that in cases covered by r. 184 of the Rules the Court exercising power under section 436 or section 438 of the Code has go to comply with the conditions mentioned in clauses (a) & (b) of r. 184 and only after the Court has complied with those conditions that an order under any of these section of the Code in respect of such offences could be passed.
" In Usmanbhai 's case a question whether the provisions of sub sections (8) and (9) of Section 20 of the TADA Act limit the scope of Sections 437 and 439, came up for consideration.
The language of sub sections (8) and (9) of section 20 is analogous to Section 37 of NDPS Act and they read thus: "(8) Notwithstanding anything contained in the Code, no person accused on an offence punishable under this Act or any rule made thereunder shall, if in custody, if in custody, be released on bail or on his own bond unless (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(9) The limitation on granting of bail specified in sub section (8) are in addition to the limitations under the Code or any other law for the time being in force or granting of bail.
" It may be noted at this stage that the power of the High Court or the Sessions Court to grant anticipatory bail has been completely taken away under Section 20(7) of the TADA Act.
The contention was that the sources of power of a designated court to grant bail is under Section 437 subject to some limitations under Section 20(8) and that it does not in any manner affect the power of the High Court independently under Section 439 to grant bail.
It is also contended that to take away the power of the High Court would tantamount to strike at the very foundation of an independent judiciary free from executive control.
After considering these submissions this Court held that: "Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow.
it is true that the source of powerof a Designated Court to grant bail is no Section 20(8) of the Act as it only places limitations on such power.
This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are 'in addition to the limitations under the Code or any other law law for the time being in force '.
But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code.
it cannot be doubted that a Designated Court is 'a court other than the High Court or the Court of Session ' within the meaning of of section 437 of the Code.
The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act." (emphasis supplied) Having held so, the learned Judge proceeded to consider the controversy as to the power of the High Court to grant bail under Section 439 Cr.
P.C. Act excluding the jurisdiction of the High Court entertain an 149 appeal or revision against the judgment of the designated court, it is held that the High Court had no jurisdiction to entertain an application for bail under Section 439 or Section 482 of the Code of Criminal procedure.
however, regarding the construction of non obstante clause in Sec.
20(8) of the Act, this Court held as under: "The controversy as to the power of the High Court to grant bail under Section 439 of the Code must also turn on the construction of Section 20(8) of the Act.
It commences with a non obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied.
The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail.
it is quite obvious that the source of power of a Designated Court to grant bail is not section 20(8) of the Act but it only places limitations on such powers.
This is implicit by Section 20(9) which in terms provides that the limitations or granting of bail specified in sub section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.
it therefore follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from section 20(8) of the Act.
It can thus be seen that even in Usmanbhai 's case also there is no observation supporting the view taken by the High Court in the impugned judgment.
As a matter of fact in Usmanbhai 's case Sen, J. who spoke for the Bench, after referring to the ratio laid down in Balchand Jain 's case observed thus: "The view expressed in Balchand Jain case is not applicable at all for more than one reason.
There was nothing in the defence and Internal Security of India Act or the Rules framed there under which would exclude the jurisdiction 150 and power of the High Court altogether.
On the contrary, Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases.
In view of the explicit bar in Section 19(2), there is exclusion of the jurisdiction of the High Court.
It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court.
The Act by Section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court.
Further while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Court would have no power to grant bail, still the source of power is not Section 439 of the Code but Section 437 being a court other than the High Court or the Court of Session.
Any other view would lead to an anomalous situation.
If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the High Court of Session would be entitled to grant bail on such terms as they deem fit.
The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437.
It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that notwithstanding anything in the code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied." (emphasis supplied) The High Court in the impugned judgment, however, referred to Usmanbhai 's case and held that the limitations placed under Section 37 of the NDPS Act are exactly similar to the ones in sub section (8) and (9) of Section 20 of the TADA Act and they are applicable only to special courts.
But we may point out that in paragraph 16 in Usmanbhai 's case it is observed: "As a murder of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482.
" 151 However, as already mentioned, the learned Judges held that the view expressed in Balchand Jain 's case is not applicable to the facts in Usmanbhai 's case and the same is clear from the observations made in Usmanbhai 's case which read as under: "Lastly both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971.
They proceed on the well recognised principle that an outer of jurisdiction of the ordinary courts is not to be readily inferred, except by express provision or by necessary implication.
It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Sections 438 and 439 exists.
We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code" From the above discussion it emerges that in Usmanbhai 's case the Supreme Court did not express anything contrary to what has been observed in Balchand Jain 's case and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the non obstante clause must be powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail.
The point of law is ordered accordingly.
The two accused respondents in these two appeals have been on bail pursuant to the order of the High Court, for a long time.
The learned counsel appearing for the Narcotics Control Bureau, the appellant herein, is also not pressing cancellation of the bail.
Therefore, we are not remitting the matters of the High Court for fresh consideration.
Pending the proceedings, they would continue to be on bail.
Subject to the above clarification of law, the appeals are disposed of.
R.P. Appeals disposed of.
|
The respondents in the appeals who were arrested for offences under various sections of the narcotic Drugs and Psychotropic Substances Act, 1985, were refused bail, and were remanded to judicial custody.
On the basis of the report the Magistrate took cognizance, and remanded them to judicial custody.
The respondents filed writ petition and criminal miscellaneous petition before the High Court seeking bail under section 167(2), Criminal Procedure Code on the grounds of belated submission of the chargesheet, and on account of illness.
The matter was referred to a Division Bench held that the limitations placed on the Special Court under section 37 (2) of the Narcotic Drugs and Psychotropic Substances Act could not be read as fetters on the High Court in exercise of its power under section 439, Cr.
P.C. to grant bail.
Aggreieved, the Narcotics Control Bureau appealed to this Court, and contended that the High Court had no untremelled powers in the matter of granting bail, as the provisions of section 37 of the NDPS Act override those of section 439, Cr.
On the question: whether the limitation placed on the Special Court under section 37(2) of the NDPS Act is to be treated as fetters on the powers of the High Court also in granting bail under section 439, Cr.
P.C. Disposing of the appeals, this Court, 140 HELD: 1.
The powers of the High Court to grant bail under section 439, Cr. p.
C. are subject to the limitations contained in the amended s.37 of the , and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail.
[151E] 2.
When there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with offences, the other powers under the Code of Criminal Procedure should be subject to such special enactment.
In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.
[145C] 3.1 The is a special enactment, enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.
That being the underlying object and particularly when the provisions of s.37 of the NDPS Act are in negative terms limiting the scope of the applicability of the provisions of the Criminal Procedure Code regarding bail, it cannot be said that the High Court 's power to grant bail under section 439, cr.
P.C. are not subject to the limitation mentioned under section 37 of the NDPS Act.
[144E G] 3.2 Section 37 of the NDPS Act starts with a non obstinate clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied/[144E; 145F] 3.3 The non obstante clause with which section 37 of the NDPS Act starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail [144G] 3.4 In case of inconsistency between section 439, Cr.
P.C. and S.37 of the NDPS Act, section 37 prevails.
3.5 Consequently the power to grant bail under any of the provisions of the Code of Criminal Procedure should necessarily be subject to the conditions mentioned in section 37 of the NDPS Act.
[145F,G] Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India & Others, and Balchand Jain vs State of Madhya Pradesh, [1977] 2 SCR page 52, relied on.
141 Usmanbhai Dawoodbhai Memon and Others vs State of Gujarat, ; , referred to.
The two accused respondents being on bail for a long time under the orders of the High Court and the Narcotics Control Bureau not passing the cancellation of bail, the matter need not be remitted to the High Court, and the respondents would continue to be on bail.
[151F]
|
Civil Appeal No. 3634 (NEC) of 1989.
From the Judgment and Order dated 11.8.1989 of the Karnataka High Court in Election Petition No. 6 of 1988.
M.C. Bandare, Ranjit Thomas and Mrs. C.K. Sucharita for the Appellant.
Shanti Bhushan, B.R.L. Iyenger, R.B. Mehrotra and E.C. Vidyasagar, for the Respondents.
For the (State of Karnataka) M. Veerappa.
Raju to the State Legislative Coun cil, and directing the recount of the votes after excluding those of 242 nominated members.
The election was held by adopting the 'single transferable vote method '.
The polling took place on 3.7.
1988 and the counting was taken up on the next date, that is, 4.7. 1988.
After several rounds of counting the appellant was declared as the successful candi date.
The election in question relates to the Chitradurga Local Authorities Constituency, comprising 121 Mandal Pan chayats.
The last date and time fixed for receiving nomina tion papers was 3.00 p.m. on 3.6.
According to the appellant 's case, a decision was taken by the Chitradurga Zilla Parishad in its special meeting held on 28.5.
1988 to nominate two members from each Mandal Panchayat, that is, a total number of 242 members.
Accordingly, steps were taken under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Parishads Act) read with the rules framed thereunder, and 242 members were duly nominated in time to be included in the electoral roll.
This has been denied by the election 340 petitioner respondent No. 1, as also some of the respondents who contested the election.
According to their case, the inclusion of the names of the nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law.
The main question in the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law.
The Deputy Commissioner, who was impleaded in the elec tion petition as the 5th respondent (in this appeal also he is respondent No. 5), had triple role to play in connection with the disputed election.
He was authorised under the Parishads Act and the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985 (hereinafter referred to as the Parishads Rules) to take steps for completing the nomination of the members; under section 13B of the Representa tion of the People Act, 1950, he was the Electoral Registra tion Officer for preparation and revision of the electoral roll; and he was also the Returning Officer under the Repre sentation of the People Act, 1951.
According to the case of the appellant, a resolution was passed by the Zilla Parishad on 28.5.
1988 nominating the aforementioned 242 members, and the Chief Secretary of the Zilla Parishad sent the list of the names to the Deputy Commissioner on 30.5.
The Deputy Commissioner was, under section 5(9) of the Parishads Act, required to publish the said names so as to complete the process of nomination.
He was also vested with the jurisdic tion to include the names in the electoral roll under the provisions of the Representation of the People Act, 1950.
It is relevant to note at this stage that the question of inclusion of the names in the electoral roll could arise only after the nomination was complete in the eye of law.
A nominated person was entitled to be included as a voter for the election to the Council Constituency after he became a member of the Mandal Panchayat and not before.
Having learnt about the nominations on the eve of the election, some persons challenged the same and objected before the Deputy Commissioner to the proposed publication.
However, the Deputy Commissioner on 1.6.1988 passed an order directing the necessary steps to be taken under the Parishads Act, and accordingly a list of the nominated members was pasted on the notice board of the office of the Deputy Commissioner.
Before the nominated persons could be treated to have become members of the Panchayats it was necessary that certain other steps also were taken in accordance with the Parishads Act and the Parishads Rules.
Subsection (1) of section 40 of the Parishads Act, which is mentioned below, 341 makes it clear that a nominated person becomes the member of a Mandal Panchayat only on the publication of his name under section 5(9): "40.
Commencement of term of Office (1) The term of office of the members elected at a general election or at a second election held under sub section (7) of section 5, or nominated shall commence on the date imme diately after the expiry of the term of office of the out going members of the Mandal Panchayat or the period of appointment of an Administrative Committee or Administrator under section 8, or on the date of publication of their names under sub section (9) of section 5, whichever is later.
" The manner of publication of the names has been prescribed by r. 73 of the Parishads Rules in the following terms: "73.
Publication of names of members elected or nominated to Mandal Panchayat.
The Deputy Commissioner shall, as soon as conveniently may be, publish the list containing the names of the members elected or deemed to have been elected or nominated to the Mandal Panchayat by causing such list to be affixed on the notice board of his office, office of the Tahsildar, concerned Mandal Panchayat and in the Chavadi.
" With a view to complete the nomination, the Deputy Commis sioner sent out the names for affixing the same on the notice boards of the office of the concerned Tahsildars and Mandal Panchayats and in the Chavadis.
The Deputy Commis sioner could have taken steps for inclusion of the names in the electoral roll of the State Council Constituency after receipt of the information of their due publication in the offices situated at different places.
There is a serious dispute as to when the necessary information became avail able at Chitradurga and the formal steps of including those names in the electoral roll were actually taken.
After examining the evidence led by the parties, the High Court has held that the names were not included in the electoral roll by 3.00 p.m. on 3.6.1988.
Mr. M.C. Bhandare, the learned counsel appearing in support of the appeal, has contended that the High Court fell in grave error in deciding the disputed issue against the appellant as it failed to 342 take note of the provisions of the Explanation to section 40(1) of the Parishads Act, which reads as follows: "Explanation.
When the names of members elected at a general election or at a second election held under sub section (7) of section 5 or nominated are published on more than one date, the date by which the names of not less than 2/3rd of the total number of members has been published shall be deemed to be the date of publication for ' purposes of this section.
" The learned counsel argued that the evidence on the record establishes that information of the publication of the names of more than 2/3rd of the total number of nominated persons had reached the Deputy Commissioner in time for the amend ment of the Council Constituency roll and the Deputy Commis sioner had actually made an order for the inclusion of the names in the roll on 2.6.1988.
Accordingly, the final elec toral roll including the nominated members was ready in the office of the Returning Officer, and the appellant, as a matter of fact, had inspected the same.
Reliance has been placed on his deposition as well as on the documentary evidence in the case.
The most important evidence in the case is to be found in the statement of the Deputy Commissioner examined as P.W. 4.
Besides, the election petitioner examined several other witnesses.
An examination of evidence on record leads to the conclusion that the Chief Secretary of the Zilla Parishad had sent the list of the nominated members to the Deputy Commissioner on 30.5.
1988 and a copy thereof was placed on the notice board of the Deputy Commissioner 's office on 1.6.1988.
However, that did not complete the process of nomination.
The provisions of section 40(1) of the Parishads Act make it abundantly clear that a nominated person would become a member of the Panchayat only after due publication of his name in accordance with r. 73.
It was therefore necessary to have the names of the nominated persons affixed on the notice board of the office of the Tahsildars, the notice boards of the Mandal Panchayats and in the Chavadis.
Mr. Bhandare is right that in view of the Explanation to section 40(1) it was not necessary for the Deputy Commissioner to have waited for the information in this regard from all the places.
On his satisfaction that the publication of 2/3rd of the total number of the names were complete, he was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by including all the nominated members.
But the ques tion is as to when the Deputy Commissioner 343 did receive the information about the 2/3rd of the total number, and further whether he, as a matter of fact, revised the electoral roll before 3.00 p.m. on the 3rd of June, 1988.
It is significant to note that the electoral roll did not get automatically amended on the completion of the process of nomination of the additional members.
Ordinarily the question of inclusion of a new name in the electoral roll arises only when an application is made before the Electoral Registration Officer in this regard, but the power can be exercised by the Officer even without such an appli cation.
In the present case it appears that a tactical battle was going on in the political arena between the two rival groups; one attempting to get the electoral roll amended by the inclusion of the nominated members and the other trying to foil it.
The Deputy Commissioner was under pressure from both sides, and as the evidence discloses, he had to consider the different stands taken before him, which slowed down the entire process.
Let us examine the evidence in this background.
The Deputy Commissioner has, in his evidence, stated that his office received the information about the nomina tion from the Zilla Parishad on 30.5.
1988 when he was at Bangalore.
He returned back to Chitradurga on 31.5.
1988 and examined a copy of the resolution of the Parishad as also the list of the nominated persons.
Soon thereafter he was approached by the two groups, one supporting the resolution and the other opposing it.
Ultimately he decided to publish the list as required by section 5(9) of the Parishads Act read with r. 73 of the Parishads Rules.
Accordingly, a copy of the list was placed on the notice board of his office and lists for the publication in the Taluk offices were handed over to the Tahsildars who were already present in Chitra durga The lists for the publication in the offices of the Mandal Panchayats and Chavadis, which were scattered at considerable distances, were sent to the Chief Secretary of the Zilla Parishad.
The Deputy Commissioner postponed the further step for modification of the electoral roll awaiting the report on publication from the different offices.
Some reports from the Taluk offices were received on 1.6.1988 itself, but the Deputy Commissioner in his evidence was not in a position to give the details.
His examination in chief was, therefore, discontinued and he was asked to bring the documents on the next date with reference to which he could answer the further questions.
Accordingly, he later appeared with the papers and stated that the last reports regarding the publication from the Taluk Office of certain places were received on 4.6.1988.
In his cross examination the Deputy Commissioner stated that on the basis of his records he could say that he had received reports from 5 Taluk Offices only on 1.6.1988, and 344 none from the Mandal Pancnayats; and on 2.6.1988 he had received reports about the publication in the Mandal Pan chayats from 2 Taluks.
As there were only 9 Taluks in his district, it can be presumed that information about the publication of 2/3rd number at Taluk offices had reached the Deputy Commissioner by the evening of the 2nd June, 1988.
However, there does not appear to be any relevant evidence available on the records, and none has been shown to us by the learned counsel, with regard to the publication of the requisite number of names in the Mandal Panchayat offices and in the Chavadis.
It has been contended on behalf of the appellant that since the burden is on the election petition er to prove such facts which may vitiate the election, he must fail in the present state of evidence.
Before adverting to this aspect we propose to consider the other evidence relating to the revision of the electoral roll.
The electoral roll was produced before the High Court and was marked as Ext.
Although it ought to have borne the dates of its preparation and revision, none is to be found there.
The inclusion of the names of the nominated members was, according to the evidence, done by attaching slips to Ext.
The Deputy Commissioner was unable to state as to the date on which Ext.
P 6 was prepared and typed.
So far the "updated Voters ' List" was concerned, it was placed on the notice board of the office of the Deputy Commissioner at 8.55.
p.m. on 3.8.1988, after a lot of wrangling between the rival groups.
In answer to a question in cross examination the Deputy Commissioner stated, "I cannot say if the preparation of this list was complete by 3.00 p.m. on 3.6.1988 as it is a ministerial part of it." As has been mentioned earlier, the dispute about the validi ty of the belated nominations had been raised on 31.5.
1988 before the Deputy Commissioner when he returned to Chitra durga from Bangalore and he took a decision on 1.6.1988 to proceed with the publication so as to complete the process of nomination.
According to his statement, which he made after verifying from the documents, the necessary informa tion from the Mandal Panchayats and Chavadis started reach ing him on 2.6.1988.
But they were inadequate as they were only from two Taluks.
At the earliest the information about the publication of the necessary number of names reached Chitradurga on 3.6.1988 when the two groups were arrayed against each other in his office, one urging the revision of the electoral roll and the other opposing it.
The deadline was 3.00 p.m. on 3.6.1988 which was approaching fast.
But it 345 is important to note that the Deputy Commissioner was not aware that the period available for the revision of the electoral roll was expiring in the afternoon.
He was under a wrong impression that the entire calender date of 3.6.1988 was available for the purpose.
Towards the end of paragraph 3 in his written statement the Deputy Commissioner categori cally stated that he "was under a bona fide impression that direction for the inclusion of the name in the electoral roll of the constituency shall be given under Section 23 at any time on the last date for making nominations".
In the earlier writ petition between the parties (in which the issue raised was not decided) the respondent No. 5 had made a similar statement in paragraph 2 of his reply.
Being under that wrong impression he was not in a hurry to take the decision in regard to the revision of the electoral roll quickly.
The election petitioner, P.W. 1, was himself not a candidate but was an active supporter of one of the candi dates and was seriously involved in the question of the revision of the roll, and, as stated in his evidence, the publication of the names under r. 73 of the Parishads Rules was complete by 3.6.1988 only in some of the Mandal Panchay ats.
After the deadline at 3.00 p.m. on 3.6.1988 was crossed an application, which has been marked as 'Annexure R III ', signed by the Secretary, District Janata Party, was given to the Deputy Commissioner asserting that no further additions or deletions in the electoral roll were permissible and an endorsement to that effect should be made by the Returning Officer.
The Deputy Commissioner did not immediately give his reply thereto.
The parties were also insisting for the publication of the electoral roll in its final shape.
Ac cording to the further evidence of P.W. 1, the Deputy Com missioner promised them that he would contact the Chief Electoral Officer at Bangalore by telephone and only there after he would decide on his further action.
The party workers including the witness awaited the further develop ment and at 8.55 p.m. the Deputy Commissioner declared that the names of the newly nominated members were included in the voters list.
Soon thereafter he also replied to the letter of the Janata Party Secretary by a letter headed as "ENDORSEMENT", stating, "With reference to the above, you are hereby informed that action has been taken to include the nominated members by the Zilla Parishad to the Mandal Panchayat in the District and as per Section 27(c) read with Section 23(3) of the R.P. Act, 1950, the Electoral Roll for Local Authority Constituency has been up dated and a copy pasted in the office on 3rd June 1988 at 8.55 P.M." 346 Two other Janata Party members have been examined as P.Ws, 2 and 3 in the case supporting the above version.
Mr. Bhandare has relied upon the oral evidence of the appellant wherein he claimed to have gone to the office of the Deputy Commissioner on 2.6. 1988 to secure a prescribed form for filing his nomination as a candidate in the elec tion and was allowed to examine the electoral roll which was kept on a table in the office.
He asserts that after verify ing his name and serial number in the list he discovered that the names of nominated members were also included therein.
He stuck to this story in the cross examination and insisted that it was at 11.00 in the morning on 2.6.1988 that he had seen the revised roll.
It is difficult to accept his case on this evidence.
According to the Deputy Commis sioner himself the report about the publication in the office of the Mandal Panchayats from only two Taluks were received by the evening of 2.6.
1988 and it is, therefore, not believable that the Deputy Commissioner had amended the roll before 3.6.1988.
The Deputy Commissioner has not claimed to have revised the roll on 2.6.1988.
On the other hand, he made a very significant assertion in his written statement in the present election petition which is quoted below: "The Deputy Commissioner issued direction for the inclusion of the names of nominated members on 3.6.1988 and the elec toral roll for local Authorities Constituency has been up dated and a copy pasted in the office on 3.6.1988 at 8.55 P.M." In the earlier writ petition also he had made a similar statement, as mentioned below, towards the end of paragraph 2 of his reply: "The Deputy Commissioner issued direction for the inclusion of the name of Respondents 3 to 246 on 3 6 1988 and the electoral roll for Local Authorities Constituency has been up dated and a copy pasted in the office on 3 6 1988 at 8 55 P.M." A plain reading of the above statement suggests that both the updating of the electoral roll and pasting a copy there of took place on 3.6.
1988 at 8.55 p.m.
The statement cannot be interpreted to mean that the revision of the electoral roll had been done about 6 hours earlier.
The circumstances that (i) the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 3.00 p.m.; (ii) he was under an impression 347 that the revision was permissible till the midnight; and (iii) in spite of the available documents to him he was not in a position to assert that the report of publication of the names of 2/3rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline, strongly support the case of the election petitioner.
It has been contended on behalf of the appellant that the burden to prove that the names of the nominated members were not included in the electoral roll in time is on the election petitioner and unless he is able to lead acceptable evidence to discharge the same, the election petition is bound to fail.
The argument is that the oral evidence led by the petitioner cannot be accepted for recording a finding that the controversial names had not actually been included in the electoral roll before 3.00 p.m. which was in the custody of the Deputy Commissioner.
The fact that political opponents of the appellant who were opposing the inclusion of the names were repeatedly asking the Deputy Commissioner orally as well as in writing to inform them whether the names were actually included in the electoral roll or not itself shows that they could not be sure of the actual position till 8.55 p.m.
The bald assertion of the witnesses for the petitioner in this regard cannot be given much weight.
Thus the position, according to the learned counsel, available from the records of the case is that there is no reliable evidence on the crucial issue and, therefore, the election petition must be dismissed.
Apart from supporting the finding of fact recorded by the High Court in favour of the election petitioner, Mr. Shanti Bhushan, learned counsel for the respondents, argued that the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. when the alleged inclu sion of the names was made public and not earlier.
He rea lied upon the decision in Bachhittar Singh vs State of Punjab, [1962] Supp.
3 SCR 713.
The appellant in that case was appointed as a Kanungo and later promoted as Assistant Consolidation Officer in the former State of Pepsu.
A de partmental inquiry was held against him as a result of which he was dismissed by the Revenue Secretary.
He preferred an appeal to the State Government.
The Revenue Minister ex pressed his opinion in writing that instead of his dismissal he should be reverted to his original post of Kanungo.
The said remarks were, however, not communicated to the appel lant officially and the State of Pepsu was merged with the State of Punjab.
The matter was thereafter re examined and the Chief Minister passed an order confirming the dismissal of the appellant.
This order was com 348 municated to the appellant which led to the filing of the writ petition in the High Court.
The High Court dismissed the writ application and the appellant appealed before this Court by special leave.
One of the questions considered by this Court was as to the effect of the order in writing by the Revenue Minister, Pepsu, recommending reversion of the appellant in place of his dismissal.
For the reasons, men tioned below, the Court held that the order of the Revenue Minister was of no avail to the appellant.
"Thus it is of essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order.
For until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communi cation the order cannot be regarded as anything more than provisional in character.
As has been pointed out earlier, the evidence of the appellant that he had actually seen the final voters list in the office of the Deputy Commissioner must be rejected as unreliable.
There is no acceptable evidence at all to show as to when the alleged corrections were made in the voters list.
At 8.55 p.m. on 3.6.1988 the inclusion of the names was made public for the first time.
The question is as to whether the electoral roll will be deemed to have been modified when it was made public at 8.55 p.m. or earlier when the actual correction in the list was made in the Deputy Commissioner 's office which fact was kept confiden tial in spite of repeated demands for information.
Besides fixing the identity of the persons to be allowed to vote at the election, the purpose of the prepara tion of the roll is to enable the persons included therein to decide as to whether they would like to contest the election.
It is also helpful to such persons in assessing their chances of success by reference to the voters finally included in the roll.
For the purpose of canvassing also, the intending contestant requires a copy of the final vot ers ' list.
The intending contestants and their supporters thus heavily depend upon the final electoral roll for decid ing their future conduct, and it is, therefore, extremely essential that it is made available to them before the expiry of the period fixed for filing the nomination papers.
It the roll as it stood earlier, was confidentially correct ed by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day, the same cannot be considered to have been prepared according to law.
349 The observations in Bachhittar Singh 's case will be fully applicable in as much as the Officer here also could recon sider the list again.
Mr. Bhandare in reply relied upon the judgment in B.K. Srinivasan and Others vs State of Karnataka and Others, , and argued that unlike the Karnataka Town and Country Planning Act, 1961 and the Rules which were under consideration in the said case, the Representation of the People Act does not require a display of the electoral roll.
The learned counsel is correct and he rightly said that putting the final voters list on the notice board is not a necessary requirement under the law.
But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information or knowledge to persons who are interested in finding out its final shape.
The reported case was dealing with the principle of subordinate legislation and in paragraph 15 of the judgment made important observa tions which support the respondents ' point of view.
It was stated thus: "There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified direct ly and reliably of the law and all changes and additions made to it by various process.
Whether law is viewed from the standpoint of the 'conscientious good man ' seeking to abide by the law or from the standpoint of Justice Holmes 's 'Unconscientious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.
" It was further observed that unlike Parliamentary legisla tion which is publicly made, delegated or subordinate legis lation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary and it was, therefore, necessary that subordinate legislation in order to take effect must be published or promulgated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or not.
It will then take effect from the date of such publication or promulgation The decision instead of helping the appel lant is clearly against him.
The vital difference between an Act of a legisla ture and a subordinate legislation was earlier noted in Harla vs State of Rajasthan, ; The Acts of the legislature are passed by the accredited representatives of the people who in theory can be trusted to 350 see that their constituents know what has been done, and this is done only after debates take place which are open to the public.
The matter receives wide publicity through the media.
But the case is different with the delegated legisla tion and, if we may add, also in the case of orders passed by the authorities like that in the present appeal before us.
The mode of publication can vary but there must be reasonable publication of some sort.
A reference may also be made to the decision in Fatma Haji Ali Mohammad Haji and Others vs The State of Bombay,, ; , where the question as to whether certain powers given to the Govern ment for issuing a direction to the Collector not to act in accordance with the prescribed rules had been actually exercised or not was under consideration.
It was stated that the power had to be exercised in clear and unambiguous terms and, "the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public." Before closing this discussion we should refer to the case of State of Maharashtra vs Mayer Hans George, [1965] 1 SCR page 123, where the English decision of Johnson vs Saragant & Sons, , relied upon by this Court in Harla 's case came to be considered.
The respondent Mayer Hans George was a German Smuggler who was carrying gold from Switzerland to Manila by an aeroplane which stopped at Bombay for sometime.
The respondent did not get down from the plane but he was searched by the Indian Officers and was found to be carrying gold illegally.
He was charged with criminal activity on the basis of a notification requiring him to declare the gold as transhipment cargo in the mani fest of the aircraft, which he had failed to do.
His defence was that he had no knowledge of this notification.
After his conviction by the trial court, the High Court on appeal acquitted him.
The Supreme Court by a majority judgment reversed the decision and found him guilty on the ground that the notification had been published in the official gazette of India.
The defence plea that since he was a foreigner and was, therefore, not expected to be aware of the notification was rejected.
While discussing the argu ments addressed in the case, the Court appreciated the criticism of Prof. C.K. Allen against the judgment in John son vs Sargant, but there was no comment or suggestion against the correctness of the judgment in Harla vs The State of Rajasthan.
On the other hand, the observations at page 163 G H are on the same lines.
It was stated that where there is no statutory requirement as to the mode or form of publication, "we conceive the rule to be that it is necessary that it should be published in the usual 351 form i.e., by publication within the country in such media as generally adopted to notify to all persons concerned the making of the rules." Having regard to the nature and pur pose of the power for rectification of the electoral roll by the Electoral Registration Officer, the principle enunciated in the abovementioned cases must be held to be applicable.
We accordingly hold that in the eye of law the electoral roll in question was not modified by the inclusion of the names of the nominated members before 8.55 p.m. on 3.6.1988.
We, therefore, affirm the decision of the High Court and dismiss the appeal with costs.
R.S.S. Appeal dismissed.
|
The appellant contested the election to the Karnataka State Legislative Council from the Chitradurga Local Author ities Constituency, comprising 121 Mandal Panchayats.
The last date and time fixed for receiving nomination papers was 3.00 p.m. on 3.6.1988.
and revision, if any, of the elector al roll had to be completed before that time.
The polling took place on 3.7.1988 and the appellant was declared as the successful candidate.
Earlier, a decision had been taken by the Chitradurga Zilla Parishad on 28.5.1988 to nominate two members from each Mandal Panchayat, that is, a total number of 242 mem bers.
With a view to complete the nomination, the Deputy Commissioner took the necessary steps in accordance with the Karnataka Zila Parishads, Taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats Act, 1983, read with the rules framed thereunder, and sent out the names for affixing the same on the notice boards of the office of the concerned Tehsildar and Mandal Panchayat and in the Chavadis.
On his satisfaction that the publication of 2/3rd of the total number of the names was complete, the Deputy Commissioner was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by includ ing all the nominated members.
In this regard, in his writ ten statement before the High Court the Deputy Commissioner stated that the electoral roll had been up dated and a copy pasted in the office on 3.6.1988 at 8.55 p.m. Sub section (1) of section 40 of the Parishads Act made it abundantly clear that a nominated person became the member of a 337 Panchayat only on the publication of his name under section 5(9) of the Parishads Act read with rule 73 of the Parishads Rules.
A petition was filed in the High Court challenging the appellant 's election on the ground that the inclusion of the 242 nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law.
After examining the evidence led by the parties the High Court held that the names were not included in the electoral roll by 3.00 p.m. on 3.6.1988.
Accordingly, the High Court set aside the election of the appellant and directed recount of votes after excluding those of 242 members.
Before this Court in appeal it was inter alia contended on behalf of the appellant that (i) the evidence on the record established that information of the publication of the names of more than 2/3rd of the total number of nominat ed persons had reached the Deputy Commissioner in time for the amendment of the Council Constituency roll, and that the Deputy Commissioner had actually made an order for the inclusion of the names in the roll on 2.6.1988 (ii) putting the final voters list on the notice board was not a neces sary requirement under the law; and (iii) since the burden was on the election petitioner to prove such facts which may vitiate the election, he must fail in the present state of evidence.
On behalf of the respondents it was contended that the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. on 3.6.1988 when the alleged inclu sion of the names was made public and not earlier.
Dismissing the appeal, this Court, HELD: (1) A plain reading of the evidence suggests that both the up dating of the electoral roll and pasting a copy thereof took place on 3.8.1988 at 8.55 p.m. [346G] (2) The circumstances that (i) the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 3.00 p.m.; (ii) he was under an impression that the revision was per missible till the midnight; and (iii) in spite of the docu ments available to him he was not in a position to assert that the 338 report of publication of the names of 2/3rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline, strong ly support the case of the election petitioner.
[346H; 347A] (3) Besides fixing the identity of the persons to be allowed to vote at the election, the purpose of the prepara tion of the roll is to enable the persons included therein to decide as to whether they would like to contest the election and to help such persons in assessing their chances of success.
[348F] (4) The intending contestants and their supporters thus heavily depend upon the final electoral roll for deciding their future conduct, and it is, therefore, extremely essen tial that it is made available to them before the expiry of the period fixed for filing the nomination papers.
[348G] (5) If the roll as it stood earlier, was confidentially corrected by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day, the same cannot be considered to have been prepared accordingly to law.
[348H] Bachhittar Singh vs The State of Punjab, [1962] Supp. 3 SCR 713, referred to.
(6) It is correct that putting the final voters list on the notice board is not a necessary requirement under the law.
But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information knowledge to persons who are interested in finding out its final shape.
[349B] S.K. Srinivasan and others vs State of Karnataka and Others, , referred to.
(7) The Acts of the legislature are passed by the ac credited representatives of the people who in theory can be trusted to see that their constituents know what has been done, and this is done only after debates take place which are open to the public.
The matter thus receives wide pub licity through the media.
But the case is different with the delegated legislation and, if one may add, also in the case of orders passed by the authorities like that in the present appeal.
The mode of publication can vary but there must be reasonable publication of some sort.
[349H; 350A B] 339 Harla vs State of Rajasthan, ; ; Fatma Haji Ali Mohammad Haji vs State of Bombay, ; ; State of Maharashtra vs Mayer Hans George, ; and Johnson vs Sargant & Sons, , referred to.
|
Civil Appeal No. 633 of 1991.
From the Judgment and Order dated 1.8.1989 of the Himachal Pradesh High Court in F.A.0.
(H.M.A.) No. 28 of 1989.
Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellant.
Subhagmal Jain and H.K. Puri for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
This appeal from a decision of the Himachal Pradesh High Court concerns the validity of a decree of dissolution of marriage by mutual consent, and is said, probably rightly, to raise an important issue.
The issue is whether a party to a petition for divorce by mutual consent under Section 13B of the ( 'Act ') can unilaterally withdraw the consent or whether the consent once given is irrevocable.
The appellant is the wife of the respondent.
They were married on 21 November 1968.
They lived together for about six to seven 277 months.
Thereafter, it is said that the wife did not stay with the husband except from 9 December 1984 to 7 January 1985.
That was pursuant to an order of the Court, but it seems that they did not live like husband and wife during that period also.
On 8 January 1985, both of them came to Hamirpur.
The wife was accompanied by her counsel, Shri Madan Rattan.
After about an hour discussion, they moved a petition under Section 13 B for divorce by mutual consent in the District Court at Hamirpur.
On 9 January 1985, the Court recorded statements of the parties and left the matter there.
On 15th January 1985, the wife filed an application in the Court, inter alia, stating that her statement dated 9 January 1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce.
Nor they were permitted to accompany her to the Court.
She said that she would not be party to the petition and prayed for its dismissal.
The District Judge made certain orders which were taken up in appeal before the High Court and the High Court remanded the matter to the District Judge for fresh disposal.
Ultimately, the District Judge dismissed the petition for divorce.
But upon appeal the High Court has reversed the order of the District Judge and granted a decree for dissolution of the marriage by mutual consent.
The High Court has observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free.
The High Court also recorded a finding that the wife gave her consent to the petition without any force, fraud or undue influence and therefore she was bound by that consent.
Section 13 B was not there in the original .
It was introduced by the Amending 68 of 1976.
Section 13 B provides: 13 B(l) Subject to the provisions of the a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
278 (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
" It is also necessary to read Section 23(l)(bb): 23(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that (bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and . ." Section 13 B is in pari materia with Section 28 of the .
Sub section (1) of Section 13 B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties.
Similarly, sub section (2) providing for the motion before the Court for hearing of the petition should also be by both the parties.
There are three other requirements in sub section (1).
There are: (i) They have been living separately for a period of one year.
(ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved.
The 'living separately ' for a period of one year should be immediately preceding the presentation of the petition.
It is necessary that immediately preceding the presentation of petition, the parties must have been living separately.
The expression 'living separately ', connotes to our mind not living like husband and wife.
It has no reference to the place of living.
The parties may live under the same roof by force of circumstances, and yet they may not be living as 279 husband and wife.
The parties may be living in different houses and yet they could live as husband and wife.
What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.
The second requirement that they 'have not been able to live together ' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves.
The third requirement is that they have mutually agreed that the marriage should be dissolved.
Under sub section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date.
This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence.
The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true.
If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.
The question with which we are concerned is whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition.
The need for a detailed study on the question has arisen because of the fact that the High Courts do not speak with one voice on this aspect.
The Bombay High Court in Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe, AIR 1984 Bom.
302, has expressed the view that the crucial time for the consent for divorce under Section 13 B was the time when the petition was filed.
If the consent was voluntarily given it would not be possible for any party to nullify the petition by withdrawing the consent.
The court has drawn support to this conclusion from the principle underlying Order XXIII Rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs or one of the parties to the suit.
The High Court of Delhi adopted similar line of reasoning in Smt.
Chander Kanta vs Hans Kumar and Anr., AIR 1989 Delhi 73 and the Madhya Pradesh High Court in Meena Dutta vs Anirudh Dutta, [1984] 11 DMC 388 also took a similar view 280 But the Kerala High Court in K.L Mohanan vs Jeejabai, AIR 1988 Kerala 28 and the Punjab and Haryana High Court in Harcharan Kaur vs Nachhattar Singh, AIR 1988 Punjab & Haryana 27 and Rajasthan High Court in Santosh Kumari vs Virendra Kumar, AIR have taken a contrary view.
It has been inter alia, held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the Court passes a decree for divorce.
The satisfaction of the Court after holding an inquiry about the genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to withdraw the consent.
The Kerala High Court in particular has ruled out the application of analogy under Order XXIII Rule I of the Code of Civil Procedure since it is dissimilar to the situation arising under Section 13 B of the Act.
From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce.
There is a period of waiting from 6 to 18 months.
This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends.
In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition.
The spouse may not be party to the joint motion under sub section (2).
There is nothing in the Section which prevents such course.
The Section does not provide that if there is a change of mind it should not be by one party alone, but by both.
The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree.
This approach appears to be untenable.
At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties.
They know that they have to take a further step to snap marital ties.
Sub section (2) of Section 13 B is clear on this point.
It provides that "on the motion of both the parties . if the petition is not withdrawn in the meantime, the Court shall pass a decree of divorce What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce.
Secondly, the Court shall be satisfied about the bonafides and the consent of the parties.
If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce.
If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other.
Such a decree cannot be regarded as decree by mutual consent.
281 Sub section (2) requires the Court to hear the parties which means both the parties.
If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent.
If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutualitly and consent for divorce.
Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13 B. Mutual consent should continue till the divorce decree is passed.
It is a positive requirement for the court to pass a decree of divorce.
"The consent must continue to decree nisi and must be valid subsisting consent when the case is heard".
[See (i) Halsbury Laws of England, Fourth Edition Vol.
13 para 645; (ii) Rayden on Divorce, 12th Ed.
1 p. 291 and (iii) Beales vs Beales, [ at 674].
In our view, the interpretation given to the section by the High Courts of Kerala, Punjab & Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view.
The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra) cannot be said to have laid down the law correctly and they stand overruled.
In the result, we allow the appeal and set aside the decree for dissolution of the marriage.
In the circumstances of the case, however, we make on order as to costs.
T.N.A. Appeal allowed.
|
The appellant wife and the respondent husband filed a petition under section 13 B of the for divorce by mutual consent in the District Court and their statements were recorded.
Subsequently, the appellant filed an application in the Court for dismissal of the petition stating that she was not willing to be a party to the petition and that her statement was obtained under threat and pressure of husband.
The District Judge dismissed the petition but on appeal the High Court reversed the order of the District Judge and granted a decree of divorce by holding that the consent to a petition for divorce by mutual consent cannot be unilaterally withdrawn and such a withdrawal would not take away the jurisdiction of the Court, if the consent was otherwise free; and since the wife 's consent was without any force, fraud or undue influence she was bound by the consent.
Hence this appeal by the wife.
Allowing the appeal and setting aside the decree of divorce, this Court, HELD: 1.
An analysis of Section 13 B makes it apparent that the filing of the petition under section 13 B(l) with mutual consent does not authorise the Court to make a decree for divorce.
The parties are required to make a joint motion under sub section (2) which should not be earlier than six months after the date of presentation of the petition 275 and not later than 18 months after the said date.
This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence.
The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true.
If the Court is satisfied that the consent of the parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.
[280D, 279C D] 2.
The period of waiting from 6 to 18 months referred to in section 13 B(2) is intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends.
In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition i.e. it may not be a party to the joint motion under sub section (2).
This sub section requires the court to hear the Parties which means both the parties, But the section does not provide that if there is a change of mind it should not be by one Party alone, but by both.
Therefore, if one of the parties at that stage withdraws its consent the Court cannot pass a decree of divorce by mutual consent.
If the Court is held to have the power to make a decree solely based on the initial petition it negates the whole idea of mutuality and consent for divorce.
Mutua consent to the divorce is a sine qua non for passing a decree for divorce under section 13 B. Mutual consent should continue till the divorce decree is Passed.
it is a positive requirement for the Court to Pass a decree of divorce.
[280D, 281A.B] K.I. Mohanan vs Jeejabai, A.I.R. 1988 Ker. 28; Harcharan Kaur vs Nachhattar Singh, A.I.R. 1988 P & H. 27 and Santosh Kumari vs Virendra Kumar, A.I.R. ; approved.
Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe, A.I.R. 1984 Bom.
302; Smt.
Chander Kanta vs Hans Kumar and Anr., A.I.R. 1989 De. 4 73; and Meena Dutta vs Anirudh Dutta, 1984 11 DMC 388 (MP); overruled.
Halsbury Laws of England, 4th Edn.
13 para 645; Rayden on Divorce, 12 Edn Vol 1 p. 291 and Beales vs Beales, ; referred to.
Section 13 B of the is in para materia with 276 Section 28 of the .
Sub Section (1) of section 13 B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties.
There are three other requirements in sub section (1).
Firstly, it is necessary that immediately preceding the presentation of the petition the parties must have been living separately for a period of one year or more.
The expression 'living separately ' connotes not living like husband and wife.
It has no reference to the place of living.
The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife.
The parties may be living in different houses and yet they could live as husband and wife.
What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.
The second requirement is that they 'have not been able to live together ' which indicates the concept of broken down marriage and it would not be possible to reconcile themselves.
The third requirement is that they have mutually agreed that the marriage should be dissolved.
[278E H, 279A B]
|
ivil Appeal No. 1484 of 1974.
From the Judgment and Decree dated 26.4.1974 of the Jammu & Kashmir High Court in Civil Second Appeal No. 4 of 1973.
A.K. Sen, E.C. Agrawala, Ms. Purnima Bhat, Atul Sharma and A. V. Palli for the Appellant.
S.K. Bhattacharya (NP) for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Hazrat Baba Ibrahim, a Saint, lived in the area called Rakhbahu in the city of Jammu.
After his demise in the year 1872 his grave became a place of worship for those who had faith in him.
The place was called Ziarat Hazrat Baba Ibrahim (hereinafter called "the Ziarat").
The Ziarat was managed by Sain Ladha, a nephew of Baba Hazrat Ibrahim After Sain Ladha 's death his son Mian Lal Din succeeded him.
At present the Ziarat is being managed by the sons of Mian Lal Din who died in the year 1963.
The Jammu & Kashmir Muslim Wakf Act came into force in the year 1959 (hereinafter called "the Act") whereunder a committee of muslim Wakf (hereinafter called "the Committee") has been incorporated.
The Committee filed a suit against Anayatullah and eight others (sons of Mian Lal Din) restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat.
According to the plaintiff, the Government of Jammu & Kashmir vide two orders dated September, 22, 1955 and November, 29, 1958 granted land measuring 3 acres and 6 acres 2 kanals 6 Marlas respectively to the Ziarat.
It was alleged that the defendants were treating the property to be their personal property.
They were mismanaging and also alienating the same.
The defendants in their written statement resisted the suit on a number of grounds and 256 stated that the land in dispute was transferred by the Government in favour of their father in lieu of his possessory right over about 400/500 Kanals of land which was taken over by the Government.
It was further claimed that the land was the absolute property of their father and the same has devolved upon the defendants by succession.
It was further claimed that notwithstanding the word "Ziarat" in the Government Orders the grants were in favour of the defendants father in his personal capacity.
The transfer of the land was not in the form of any dedication and as such was not a property of the Ziarat.
The defendants claimed the right to deal with the property in any manner they liked on the ground that the same belonged to them.
The Trial Court by its Judgment dated August 6, 1970 came to the conclusion that the two grants by the State Government were in fact made in favour of Mian Lal Din and not in favour of the Ziarat.
The suit of the committee was dismissed with costs.
The District Judge, Jammu by his Judgment dated February 28, 1973 upheld the findings of the Trial Court and dismissed the appeal of the committee.
The committee went up in second appeal before the Jammu & Kashmir High Court.
Murtaza Fazal Ali, C.J. (as the learned Judge then was) by his judgment dated April 26, 1974 set aside the judgments of the courts below and allowed the appeal of the committee.
The Learned Chief Justice decreed the plaintiff 's suit for injunction as prayed for.
This appeal via Special Leave Petition is against the judgment of the High Court.
Mr. Ashok Sen, learned counsel appearing for the appellant has taken us through the judgment of the Trial Court and that of the Lower Appellate Court.
According to him, the High Court has erred in upsetting the findings of the courts below based on appreciation of evidence.
Mr. Sen contended that the appellant 's ancestors were in possession of ' more than 140 Kanals of land for a very long period and had established possessory title over the said land.
According to him, the Government took over the said land from the father of defendants and in lieu of that two grants in the years 1955 and 1958 were given to Mian Lal Din in his personal capacity.
It was contended that on appreciation of the evidence produced before the Trial Court the courts below found as a fact that the defendants were the owners of the property subject matter of the Government grants and as such the High Court acted illegally in upsetting the same.
The learned counsel relied upon the following findings of the Lower Appellate Court in support of his contention: 257 "As discussed above, the possession of the defendants and their father and grand father and Hazrat Baba Ibrahim over 40 kanals of land as Arak and about 100 kanals of land under cultivation is proved, and it is further proved from the Government order Ext.
D.A./4 refusing the recommendation of the Financial Commissioner that the basis for the grant of proprietary rights in respect of 74 kanals of land was the personal possession of the father of the defendants and his predecessors and it was in lieu of the possession of that chunk of land that the Government parted with 74 kanals of land.
The counsel for the plaintiff has further argued that because the Government orders of 1955 and 1958 mentions the word "Ziarat" as the grantee it is not permissible for the Civil Court to hold that the grant was in favour of the father of the defendants.
Keeping in view the back ground as discussed above, I am unable to agree with the contention of the learned counsel for the plaintiff.
The mere fact that Mian Lal Din was associated with the Ziarat as a descendant of Hazrat Baba Ibrahim Sahib and the mere fact that the word "Ziarat" was used in the Government orders of 1955 and 1958 would not preclude this Court from holding that the grant was not in favour of the Ziarat but was in fact in favour of the father of the defendants.
The contents of the Government orders of 1955 and 1958 referred to above are to be considered with the facts that Mian Lal Din and his ancestor possessed the land in their individual capacity; that the Government repelled the claim of Mian Lal Din for additional grant of land on the simple ground that the land already granted to him was costlier than the land which he held in possession; that there was no intention on the part of the Government to dedicate the land to the Ziarat out of any pious intention; that it was a sort of bargain between Mian Lal Din, the father of the Defendants and the Government where under the land measuring 74 kanals was parted within the proprietary rights by the Government in consideration of Lal Din 's having abandoned possession of over 400 kanals Of land; the fact that the Committee plaintiff also treated the grant in favour of Lal Din as is evident from Ext.
PD also supports my view.
The fact that the defendants and their father leased out a part of the property on a long lease to third parties, the fact that the defendants got compensation for a portion of the land acquired by the Government; the fact that there was no claim laid to the land by the Wakf 258 Committee upto the year 1966 even when the Government orders were passed in 1955 and 1958, the fact that no demand was ever made from Lal Din to render accounts in respect of the income specially derived by him from the suitland, the fact that a large number of shops, khokhas and buildings have been constructed by the defendants (assuming that one room was constructed by the Wakf Committee) also is determinative of the fact that the transfer was infact made in favour of Lal Din and not in favour of the Ziarat as such.
" It is not disputed that the property which is subject matter of the dispute was granted by the State Government under the two orders dated September 22, 1955 and November, 29, 1958.
The respondent plaintiff claims that the grant was in favour of the Ziarat whereas the appellant defendants claim that the property was given to the father of the defendants absolutely and in his personal capacity.
The two documents of title by which the grant was made may now be referred to.
The Government order dated September 22, 1955 is as under: "It is ordered that 3 acres of land of Rakhbahu of the Rakhs and Farms Deptt.
surrounding the Ziarat Shareef of Baba ibrahim Shah be granted to the said Ziarat e Shareef permanently.
By order of the Cabinet.
Sd/ (G.M. Bakshi) Prime Minister".
The Government order dated November, 1958 runs thus; "(1) The confirmation of the action taken by the Prime Minister in granting land measuring 6 acres 2 kanals and 6 marlas to Ziarat Shareef Baba Ibrahim Shah Sahib at Ghandi Nagar Jammu and (2) The grant of compensation amounting to Rs. 12,500 by debit to Housing grant in favour of the said Ziarat for 12.5 kanals of land @ Rs. 1000 per kanal, taken over by the Public Works Department for development of Gandhi Nagar out of the area of 3 acres sanctioned vide Cabinet Order No. 1418 C dated 20.9.55.
By order of the Jammu and Kashmir Government Sd/ Noor Mohd Secretary to Government" 259 The above quoted orders of the Government are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to Ziarat alone and not to the appellant defendants in their personal capacity.
In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders.
The High Court interpreted the above quoted two orders as under: " The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shared of Baba Ibrahim Shah be granted to the said Ziarat permanently.
The later order of 1958 also says the same thing.
It is nowhere mentioned in any of these orders that the land was given not to the Ziarat but to the defendant who was Mujawar of the Ziarat either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government.
Since the recitals in the documents are absolutely clear and are expressed in unmistakable terms, there is no room for adducing evidence adduced to contradict the recitals of these two documents.
Thus the evidence adduced by the defendants to show that the grant was made not to the Ziarat but to them is clearly hit by sections 91 and 92 of the Evidence Act and is, therefore, inadmissible.
Further more the grant was made in 1955 and 1958, that is to say several years before and the Government has not come forward after such a long lapse of time to support the stand of the defendants that the grant was intended for them in their personal capacity and not for the Ziarat.
I fail to understand how in face of such clear recitals in the documents the courts below have by a process of evisceration and interpolation construed the documents to means as if it was a grant in favour of the defendants.
The courts below appear to have been influenced by the fact that when the defendants represented to the Government that the lands in their cultivating possession had been taken over by the Government without paying compensation, some Government Officers replied that a substantial grant of land had been made to the Ziarat.
This obviously was a wrong stand taken by the Government Officers and could not clothe the defendants with the right of wiping out the legal validity of the grant made year before the officers gave this reply.
Indeed the remedy of the defendants was to sue for damages or for compensation for, the land unlawfully acquired by the Government.
There was no justification for the 260 defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same which was an managers or trustees and asset a hostile title to it.
The law on the subject is absolutely clear that a manager or a trustee in possession of a religious shrine cannot be allowed to asset a hostile title unless he formally surrenders possession to the lawful authority.
Before going into this point of law at some length it may be necessary to refer to certain proved facts in the case: (1) It is not disputed that the present Ziarat existed since a long time and became a Wakf by long public user.
(2) That the first defendant was the Sajadanashin or caretaker of the Ziarat.
(3) That the land belonged to the Government originally.
(4) That the Government granted the land in dispute to the Ziarat and not to the defendants.
(5) That the defendants were admittedly in possession of the Ziarat as also the properties appurtenant thereto.
In these circumstances it is clear that even if the defendants were in possession of the lands, their possession would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat.
In other words the possession of the defendants would be for the benefit of the Ziarat.
We agree with the above quoted findings of ' the High Court and approve the same.
We do not agree with the argument of Mr. Ashok Sen that the High Court was in error in upsetting the findings of the courts below.
The question before the High Court was the interpretation of two government orders which was essentially a question of law.
The High Court was justified in observing that in the face of clear and unambiguous terms of the Government orders it was not permissible for the appellant defendants to adduce evidence to show that the grant was made to them and not to the Ziarat.
No other point was raised before us.
We, therefore, dismiss the appeal.
The respondent plaintiff shall be entitled to costs throughout which we quantify as Rs. 15,000.
N. P. V. Appeal dismissed.
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The Ziarat Shareef of Hazrat Baba Ibrahim, a holy place of worship, in the Rakhbahu area of Jammu City was granted certain land to the Ziarat by the State Government vide two orders dated September 22, 1955 and November 29, 1958.
The Ziarat was being managed by the 1st appellant and his brothers, since the death of their father in 1963.
The Committee of Muslim Wakf, incorporated under the Jammu and Kashmir Muslim Wakf Act, which came into force in 1959, file a suit for restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat, on the allegation that the appellants defendants were treating the lands granted to the Ziarat, as their personal property and mismanaging and also alienating the same.
Resisting the suit, the appellants, defendants contended, inter alia, that notwithstanding the use of the word "Ziarat" in the two Government orders the transfer of the land in dispute was in their father 's favour in his personal capacity, in lieu of his possessory right over about 400/500 kanals of land which was taken over by the Government, and not in the form of any dedication, and as such the land was not the property of the Ziarat but their father 's absolute property, and had devolved upon them by succession and, therefore, they had the right to deal with the property in any manner they liked.
The trial court dismissed the suit, holding that the two grants were in fact made in favour of defendants ' father and not the Ziarat.
254 The first appellate court upheld the trial court 's findings.
However, in second appeal, the High Court held that from the recitals of the two orders of the Government of 1955 and 1958 it was clear that the two grants were in favour of the Ziarat.
Hence, the appellants defendants filed the appeal, by special leave before this Court contending that the High Court had erred in upsetting the findings of the courts below, based on appreciation of the evidence that, as a fact, the appellants defendants were the owners of the property, the subject matter of the Government grants.
Dismissing the appeal, the Court, HELD: 1.1 The two orders of the Government dated September 22, 1955 and November 29, 1958 are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to the Ziarat alone and not to the appellants defendants in their personal capacity.
In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders.
The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be granted to the said Ziarat permanently.
The later order of 1958 also says the same thing.
It is nowhere mentioned in any of those orders that the land was given not to the Ziarat but to the father of the appellants defendants, who was Majawar of the Ziarat, either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government.
[259A, B C] 1.2 A manager or a trustee in possession of a religious shrine cannot be allowed to assert a hostile title unless he formally surrenders possession to the lawful authority.
[260B] In the instant case, there was no justification for the appellants defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same, which was as managers or trustees and assert a hostile title to it.
Even if they were in possession of the lands, it would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat.
In other words, the possession would be for.
the benefit of the Ziarat.
[259H, 260A, E] 1.3 In the face of clear and unambiguous terms of the Government orders, it was not permissible for the appellants defendants to adduce evidence to show that the grant was made to them and not to the 255 Ziarat.
The question was of interpretation of two Government orders, which was essentially a question of law.
[260G] In the circumstances, the High Court was not in error in upsetting the findings of the courts below.
[260F]
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Civil Appeal No.2215 of 1977.
From the Judgement and Order dated 237 1976 of the Madhya Pradesh High Court in Misc.
Appeal No.23 of 1976.
T.U.Metha, S.K. Gambhir, Vivek Gambhir and Surinder Karnail for the Appellants.
Uday U. Lalit and A.G.Ratnaparkhi for the Respondents.
The Judgement of the Courtwas delivered by SHAREMA,J,.
The question for decision in this appeal by special leave is whether a petition under s.11 of the , for declaring the marriage of the petitioner as nullity is maintainable after the death of the petitioners ' spouse.
The appellent No. 1, hereinafter referred to as the Maharani, was marriedto Maharaja Rameshwarsighji in1960 and a daughter, the appellant no.2, was born of the wedlock in 1964.
The relationship between the husband and the wife thereafter ceased to be cordial and the appellants started living in Bombay and the Maharaja within his estate in Madhya Pradesh.
According to the case of the respondent no.1 the Maharaja decided to remarry without legally separating from the appellant Maharani.
The respondent who is a relation of the Maharaj 's mother, respondent No.2, was misled both by theMaharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under the belief she married the Maharaja and the couple got several issues.
In 1974 when the Maharaja died, an application for grant of Letters of Administration was filed by the appellant Maharani and the respondent applied for probate on the basis of an alleged will which is denied by the appellant.
The proceedings are still pending.
In this background the respondent 197 No. 1 filed the present application under section 11 of the for declaring her marriage as nullity.
The Maharaja 's mother was impleaded as the sole respondent.
When the appellants learnt about the case, they intervened and were joined as parties.
The appellants challenged the maintainability of the application on the ground that the marriage could not be declared nullity after the death of the Maharaja.
Both the trial court and the High Court have rejected the appellants ' plea. 4.
mr. Mehta, the learned counsel for the appellants, has contended that having regard to the very special relationship between husband and wife, a marriage cannot dissolved or declared to be a nullity unless both of them are parties thereto.
The marital status of a person stands on a much higher footing than other positions one may hold in the society or may have in relation to a property; and cannot be allowed to be challenged lightly.
The marriage of a person, therefore, cannot be declared as a nullity after his death when he does not have an opportunity to contest.
He relied upon the language of s.11.
After its amendment in 1976 the section read this: "11.
Void marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may , on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i),(iv) and (v) of Section 5." (emphasis added) 5.
The present proceeding was started in 1974, that is, before the amendment, and the section did not contain the words which have been underlined by us above.
At that time all that was required was that the application had to be filed by a party to the marriage under challenge.
On the plain language of the section as it stood then, it could not be claimed that in absence of the other spouse as a party to the proceeding, the same would not be maintainable.
The argument of Mr. Mehta is that the section had the same meaning before and after the amendment and the addition of the words in 1976 was merely clarificatory in nature.
He strongly relied upon the 69th Report of the Law Commission. 6.
The Report recommended several amendments in the which led to the passing of the Amending Act of 1976.
198 Reliance was placed on paragraph 6.1A of Chapter 6 of the Report which referred to the divergent views taken by the High Courts of Punjab and Madras on the question of maintainability of a petition under s.11 after the death of the other spouse.
The Commission, thereafter, observed thus: "We ought, however, to point out that in such a case, the proper remedy is a suit under the Specific Relief Act.
A petition under section 11 of the cannot be appropriate, because the other spouse is an essential party to any such petition.
This should be clarified by an amendment.
" It has been argued before us that the view of the Madras High Court referred to in the Report is the correct view which was accepted by the Law Commission, and since there was scope for controversy on the language of the section, the legislature agreeing with the Law Commission added the aforementioned additional words by way of clarification.
It is urged that such interpretation of the section did not lead to any injustice inasmuch as a suit for such a declaration was and is maintainable in the civil court.
Reliance has also been placed on "Rayden and Jackson 's Law and Practice in Divorce and Family matters." (15th Edn.), and several English cases in support of the proposition that on the death of a party to a matrimonial action the cause of action does not service.
Reference has been made to the case of Butterfield vs Butterfield, I.L.R. (Vol.50) Calcutta 153, where after the wife had obtained a decree nisi for dissolution of her marriage the husband died.
Following the English case of Stanhope vs Stanhope,[1886] 11 P.D.103, it was held that the decree could not be confirmed.
The learned counsel for the respondent relied upon certain observation made in other High Courts ' judgments supporting his stand.
He pointed out that having regard to the language of section 16, as it stood before the amendment, the children born of the respondent would not have been entitled to the benefit of the section in the absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation.
We have considered the argument of Mr. Mehta closely but do not find ourselves in a position to agree with him.
It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status.
The 199 question will be dependent upon the nature of the action and law governing the same.
The provisions of the relevant statute relating to a proceeding in question will be very material.
This aspect has been taken note of by Rayden and Jackson also in their book which has been relied upon by Mr. Mehta.
The passage at page 650 summarises the position in the following words: "Death of a party: effect on suit.
In many cases the fact of the death of one of the parties will render the process meaningless by reason of the circumstances that a marriage brought to an end by death could no longer be dissolved by an Act of the court.
But there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it.
It has been said that it is unhelpful to refer to abatement at all.
The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken.
The answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third.
The first matter is the nature of the further proceedings sought to be taken.
The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both.
The third matter is the applicability of section I (I) of the Law Reforms (Miscellaneous Provisions) Act 1934.
The dispute issue in the present appeal has to be answered by considering the nature of the proceedings and the true construction of the relevant provisions of the .
Under the general law a child for being legitimate has to be born in lawful wedlock, and if the marriage is void or declared to be so by the court, it will necessarily have the effect of bastardising the child born of the parties to such a marriage.
By enacting section 5(i) of the Act, the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past.
The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases atleast for sometime to come special provisions were included under s.16 of the Act with the object of protecting the legitimacy of the children.
The original section before the amendment of 1976 read as follows: "16.
Where a decree of nullity is granted in respect 200 of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity.
Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possession of acquiring any such rights by reason of his not being the legitimate child of his parents.
" It will be seen that the benefit of the section was confined to only such cases where a decree of nullity was granted under section 11 or s.12.
it did not extend to other cases.
In 1976 s.11 was amended by inserting the words "against the other party", and along with the same s.16 was amended as it read now.
the following words in section 16(i). ". and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act." enlarged the applicability of the beneficial provisions, so as not to deny the same to children who are placed in circumstances similar to those of the present respondent.
By the amendment in s.11, in so far the cases where marriage can be declared as nullity, the application of the rule protecting the legitimacy was widened.
If that had not been done, the children born of such marriage would have been deprived of the advantage on the death of either of the parents.
By the simultaneous amendment of the two sections it can safely be deduced that the Parliament did not hold identical views as expressed by the Law Commission 's Report.
Even if it be assumed that the meaning of the section was not free from ambiguity, the rule of beneficial construction is called for in ascertaining its meaning.
The intention of the legislature in enacting s.16 was to protect the legitimacy of the children who would have been 201 legitimate if the Act had not been passed in 1955.
There is no reason to interpret s.11 in a manner which would narrow down its field.
With respect to the nature of the proceeding, what the court has to do in an application under s.11 is not bring about any change in the marital status of the parties.
The effect of granting a decree of nullity is to discover the flaw in the marriage at the time of its performance and accordingly to grant a decree declaring it to be void.
we, therefore, hold that an application under s.11 before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse.
Accordingly, this appeal is dismissed with costs.
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The appellant No.1 Maharani was married to a Maharaja in 1960 and the daughter appellant no.2 was born of the wedlock in 1964.
The relationship between the husband and the wife thereafter ceased to be cordial and the appellant started living in Bombay and the Maharaja within his estate in Madhya Pradesh.
It is the case of the respondent No.1 that the Maharaja decided to remarry without legally separating from the appellant.
The respondent who is a relation of the Maharaja 's mother, respondent No.2,was misled both by the Maharaja and his mother, respondent No.2 was misled both by the Maharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under that belief she married the Maharaja had been dissolved and under that belief she married the Maharaja and several issues were born of this wedlock.
In 1974 when the Maharaja died, on application for grant of Letters of Administration was filed by the appellant Maharani, and the respondent No.1 applied for probate on the basis of an alleged will.
This will was denied by the appellants.
These proceedings are still pending.
Respondent No.1 filed an application under Section 11 of the for declaring her marriage as nullity, and the Maharaja 's mother was impleaded as the sole respondent.
The appellants intervened and were impleaded as parties.
The maintainability of the aforesaid application was challenged by the appellants on the ground that the marriage could not be declared 194 a nullity after the death of the Maharaja but both the trial court and the High Court have rejected this plea.
In the appeal to this Court it was contended on behalf of the appellants that having regard to the very special relationship between husband and wife,a marriage cannot be dissolved or declared to be a nullity unless both of them are parties thereto.
The martial status of a person sands on a much higher footing than other positions one may hold in the society and cannot be allowed to be challenged lightly,and that the marriage of a person, therefore, cannot be declared as nullity after his death when he does no have an opportunity to contest.
Reliance was placed upon the language of Section 11 of the .
On behalf of the respondent, it was pointed out that having regard to the language of Section 16 of the as it it stood before its amendment in 1976,he children born of the respondent would not have been entitled to the benefit of the section in absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation On the question: whether a petition under Section 11 of the for declaring the marriage of the petitioner as a nullity is maintainable after the death of the petitioner 's spouse.
Dismissing the appeal, this Court, HELD: 1 .An application under Section11 of the before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse.[201B].
In the instant case, the proceeding was started in 1974 that is, before the amendment was made in the Hindu Marriage Act,1955.
Section II did not contain the words "against the other party".
At that time all that was required was that the application had to be filed by a party to the marriage under challenge.
On the plain language of the section as it stood then,it could not be claimed that in absence of the other spouse as a party to the proceedings, the same would not be maintainable.[197F] 3.Under the general law a child for being legitimate has to be 195 born in lawful wedlock and if the marriage is void or declared to be so by the Court, it will necessarily have the effect ofbastardising the child born of the parties to such a marriage.[199F] 4.
By enacting Section 5(i) of the the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past.
The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases at least for sometime to come special provisions were included under Section 16 of the Act with the object of protecting the legitimacy of the children.[199G] 5.
The benefit of Section 16 was confined to only such cases where a decree of nullity was granted under Section 11 or section 12.
It did not extend to other cases.
in 1976 section 11 was amended by inserting the words "against the otherparty" and alongwith the same section 16 was amended.[200D] 6.
By the amendment in section 11, in so far the cases where marriage can be declared as nullity, the application of the rule protectingthe legitimacy was widened.
If that had notbeen,the children born of such marriages would have been deprived of the advantage on the death of either of the parents.
By the simultaneous amendment of the two sections it can safely be deducted that the Parliament did not hold identical views as expressed by the law Commission in its59th Report.[200F G] 7.
The intention of the legislature in enacting section 16 was to protect the legitimacy of the children who would have been legitimate if the Act had not been passed in 1955.[200H] 8.
There is no reason to interpret section 11 in a manner which would narrow down its field.
With respect to the nature of the proceedings, what the court has to do in an application under section 11 is not to bring about any change in the marital status of the parties.
The effectof granting a decree of nullity is to discover the flow in the marriage at the time of its performance and accordingly to grant a decree declaring it tobe void.
[201A B] Butterfield vs Butterfield; I.L.R.(Vol.50) Calcutta 153 and Stanhope vs Stanhope, , and Law Commission of India 59th Report Chapter 6, para 6.1A referred to.
196 9.It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status.
The question will be dependent upon on the nature of the action and law governing the same.
The provisions of the relevant statue relating to a question will be very material.[198H 199A] Rayden and Jackson 's Law and Practice in Divorce and Family Matters, (15th Edn.).
p.650, referred to.
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ivil appeal Nos.
552 554 of 1991.
From the Judgment and Order dated 9.10.1989 of the Central Administrative Tribunal, New Bombay in Transfer Applications No. 430, 431 and 433 of 1987.
B.K. Mehta, C.P. Pandey, M. Chopra and V.S. Sharma for the Appellants.
K. Lahiri, Ms. Kitti Kumaramangalam and Ms. Sushma Suri (NP) for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted The appellants and the writ petitioners are presently serving in the Time Keeping Department of the Naval Dockyard, Bombay, which is under the administrative control of the Vice Admiral, Flag Officer, Commanding in chief, Western Naval Command, Bombay.
In the said department there are several posts of Junior Time Keepers and only two posts of Senior Time Keepers.
Since the promotional posts were limited in number there was stagnation at the base level of Junior Time Keepers.
With a view to removing this stagnation, the cadre of Time Keepers was sought to be amalgamated with the clerical cadre in the same department.
On 14th September, 1966, the Under Secretary to the Government of India, Ministry of Defence, wrote a letter to the Chief of Naval Staff on the subject of amalgamation of the Time Keepers cadre with the clerical cadre.
The text of the letter reads as under: "Sir, I am directed to convey the sanction of the President to the merger of the cadre of time keepers with the clerical cadre in all Naval Establishments.
Consequent on this merger, 223 Senior Time Keeper will be redesignated as Upper Division Clerks.
The authorised ratio of 1:4 between UDCs and LDCs will be maintained after this merger but where because of the merger and redesignation of Senior Time Keepers as Upper Division Clerks the number of Upper Division Clerks exceeds the authorised ratio, no reservations will be made and the excess vacancies of Upper Division Clerks will be adjusted against vacancies of Upper Division Clerks becoming available by way of increase in Establishment, retirement, etc.
The existing pay of the time keepers will be protected and they will continue to draw increments in the new cadre on the due dates: 3.
Any subsidiary instructions regarding seniority promotion etc.
will be issued by you.
4.This letter issue with the concurrence of Ministry of Finance (Defence/Navy) vide their u.o.
No. 3161 NA dated 31.8.1866.
" A few days later another letter dated 5th December, 1966 was issued by the office of the Rear Admiral, Western Naval Command, Bombay, on the same subject which reads as under; "In accordance with the Govt.
of India, Ministry of Defence letter No. CP(A)/4895/NHQ/8364/D/N II dated 14th September 1966 the Cadre of Time Keepers will be merged with that of LDC/UDC with effect from 1st December, 1966.
This merger is intended only to give promotion to the Time Keepers alongwith the LDC/UDC.
Their duties, terms and conditions of service will remain the same and their hours of work will also continue to be 45 in a week.
Consequent upon the issue of this order and in order to distinguish them from the UDC/LDC and UDC(s)/LDC(s) the suffix "T" will be added after their designation.
All records and correspondence relating to them should also be indicated by this suffix".
224 The employees working in the Time Keeping Department were entitled to the benefit of over time and productivity linked bonus since they were considered to belong to the industrial wing.
Lower Division Clerks and Upper Division clerks belonging to the clerical cadre who were working in different administrative offices of the Naval Dockyard were not entitled to this benefit.
Therefore, when one Thoppil Ramakrishnan was transferred in August, 1980 as UDC(T) in the Spare Parts Distribution Centre, he challenged his transfer by filing a Writ Petition No. 1065/80 in the High Court of Bombay on the ground that since he was appointed as Junior Time keeper in 1953 and was promoted as UDC(T) in 1967 he belonged to a special cadre and could not be transferred to the general cadre as that would entail loss of the benefit of over time and productivity linked bonus.
His petition was allowed by the High Court by the judgement and order dated 1st March, 1984.
The High Court, treating the letter of 5th December, 1966 as clarificatory, concluded that the merger was intended for the sole purpose of making available to the Time Keepers avenues of promotion in the clerical cadre but their terms and conditions of service were to remain in tact and it is for that purpose that they were to be designated by the suffix"T".
The High Court, therefore, held that there was no complete merger of the two cadres.
The High Court, however, realised that Time Keepers could not be given promotion to more responsible assignments unless they received the required experience of administrative work normally available to Lower Division Clerks and Upper Division Clerks, but rested content on the statement made by the counsel for the petitioner that the pertitioner will not claim the benefit of promotion in the clerical cadre.
On this statement the High Court made the rule absolute.
Against this judgement a Letters Patent Appeal was filed but without success.
Another Writ Petition No.1066/80 files by Chob Singh Tomar was similarly disposed of by the same learned Judge on the next day i.e. 2nd March 1984.
Both the above Judgement were mainly based on the language of the letter of 5th December, 1966.
Realising the difficulty created by the saidletter, the Flag Officer, Commanding in Chief, Western Naval Command, Bombay, cancelled the said letter by his communication dated 27th August, 1984.
The subsequent communication reads as under: "1.
Ministry of Defence Letter CP(A)/4895/NHQ/8634/D(N II) dated 14 Sep. 66 is reproduced as Annexure I to this order for information.
225 2.This Headquarters Civilian Establishment Order Part II of 1966 No.6 dated 05 Dec. 66 and 50/80 dated 23 Aug. 80 are hereby cancelled.
" By a subsequent letter dated 20th November, 1984 it was further directed that the suffix"S" and suffix "T" should bed removed from all records and the incumbents should be redesigned as LDCs/UDCs.
On the cancellation of the letter of 5th December, 1966 and the removal of the suffix "T", what survived was only the merger order of 14th September, 1966.
Consequently inter se transfers from the Time keeping Department to the various administrative departments of the Naval Dockyard became possible.
Thereupon, R.A. Sawant and R.D. Jawakar who were working in the Time Keeping Department were transferred on promotion as UDC by orders dated 17th April, 1985 and 5th October, 1985 respectively to other administrative departments of the naval establishment.
These transfers triggered off certain writ petitions in the High Court of Bombay.
On the constitution of the Central Administrative Tribunal for that area, those writ petitions were transferred to the Tribunal for disposal in accordance with law.
The Tribunal by its impugned common judgement dated 9th October, 1989 came to the conclusion that after the cancellation of the order dated 5th December, 1966 the field was held by the Presidential Order referred to in the letter of 14th September, 1966.
The Tribunal held that the employees in the Time Keeping Department no longer belonged to separate cadre and the authorities were entitled to transfer them to the other ministerial branches in the Naval establishment under the Merger Scheme.
In regard to the judgements delivered by the High Court of Bombay on 1st and 2nd March, 1984, it opined that on the cancellation of the order of 5th December, 1966 those decisions had lost their force and the question had to be answered solely on the basis of Presidential Order referred to in the letter of 14th September, 1966.
In this view of the matter the Tribunal dismissed the applications and vacated the interim orders.
It is against the said judgement of the Tribunal that the aforesaid appeals have been filed.
Certain other employees who apprehended transfer from the Time Keeping Department to other administrative departments in the Naval establishment approached this Court directly by way of a writ petition.
Their contention is identical to the contention raised in the appeals preferred against the impugned order of the Tribunal.
We will, therefore, dispose of the appeals as well as the writ petition by this common judgement.
226 Mr. Mehta, the learned counsel for the appellant petitioners contended that the employees working in the Time Keeping Department of the Naval establishment perform duties which are distinct from ordinary clerical duties and therefore they constitute a separate and distinct cadre to which are attached certain additional monetary benefits, such as, over time payment, productivity linked bonus, etc., which would be lost to them if they are transferred to other administrative departments of the naval establishment.
He submitted that since the Junior Time Keepers did not have sufficient avenues for promotion and were stagnating at the base leval and the Senior Time Keepers had no promotional avenue altogether, their grievance was sought to be redressed by providing them further avenues of promotion under the Presidential Order, without depriving them of their identity and special benefits available as belonging to the industrial wing of the establishment.
According to him the Presidential Order of merger contained in the letter dated 14th September, 1966 was issued for this limited purpose only of giving the Time Keepers an opportunity of career advancement which was available to their counter part in the administrative (Non industrial) departments of the Naval establishment but it was never intended to deprive them of the additional monetary benefits to which they were entitled as belonging to the industrial wing.
In other words according to Mr. Mehta the merger of the Time Keepers ' cadre with the clerical cadre was only notional and limited to opening avenues for promotion for the former but there was no actual merger in the sense of the Time Keepers losing their identity and that is why in the subsequent letter of 5th December, 1966 the department rightly observed that their duties, terms and conditions of service will remain the same and their hours of work will continue to be 45 in a week and they should be distinguished by the use of the suffix "T" after their designation.
The cancellation of the order of 5th December, 1966 by the subsequent order of 22nd August, 1984 does not alter the situation contended Mr. Mehta and, therefore, said he, the Tribunal was in error in coming to the conclusion that the earlier two decisions of the Bombay High Court had lost their force.
He, therefore, submitted that the Tribunal 's approach was clearly erroneous and this Court must correct the same.
Mr. Lahiri, the learned counsel for the department contended that the Presidential Order referred to in the letter of 14th September, 1966 had merged both the cadres and the Time Keepers were, therefore, redesignated as Lower Division Clerks and Upper Division Clerks.
He submitted that there was no indication in the Presidential Order that these Time Keepers who were redesignated as LDCs/ 227 UDCs will continue to constitute a separate cadre and yet be entitled to promotion in the clerical cadre.
He, therefore, submitted that the subsequent order of 5th December, 1966 was issued on an erroneous reading of the Presidential Order and when the department realised the mistake after the High Court 's judgements, it promptly cancelled the said order and restored the position as on the issuance of Presidential Order.
He, therefore, submitted that the Tribunal was right in coming to the conclusion that as the High Court 's judgements were based on the subsequent order of 5th December, 1966 and the same was since cancelled, the judgements no longer held the field and the appellants petitioners were not entitled to the benefit thereof.
He further pointed out that under the Presidential Order the ` pay ' of the Time Keepers has been protected and therefore, they can have no cause to complain but such of those LDCs/UDCs who are posted in the Time Keeping Department are allowed to draw overtime wages as well as bonus admissible under the relevant law.
These benefits are attached to the post and not the individual and the one who is manning the same is entitled to them and not others.
He, therefore, submitted that this Court should not interfere with the view taken by the Tribunal and should dismiss these appeals as well as the writ petition.
We have carefully considered the contentions urged before us by the learned counsel for the contesting parties.
The letter of 14th September, 1966 clearly refers to the Presidential sanction"to the merger of the cadre of Time Keepers with the clerical cadre in all Naval establishments".
Consequent on this merger the Junior Time Keepers were to be redesignated as Lower Division Clerks and there Senior Time Keepers as Upper Division Clerks.
There is nothing in this letter to convey that they were to retain their identity as Time Keepers.
The letter further states that their entry into the clerical cadre should not disturb the authorised ratio of 1:4 between UDCs and LDCs but where because of the merger and redesignation of Senior Time Keepers as UDCs, the numbers of UDCs exceeds the authorised ratio, there should be no revision but in the excess should be adjusted against vacancies becoming available by way of increase in establishment, retirement, etc.
Paragraph 2 of that letter states that the existing pay of the Time Keepers will be protected and they will continue to draw increments in the new cadre on the due dates.
It is clear from the above text of the letter of 14th September, 1966 that the intention was to merge the cadre of Time Keepers with the clerical cadre and to adjust the imbalance.
If any, caused on account of such merger in a manner so as not to disturb the authorised ratio.
The pay and increments of the Time Keepers were protected by the said order.
There 228 can, therefore, be no doubt that the plain language of the Presidential Order as reproduced in the letter of 14th September, 1966, clearly manifests an intention to merge the existing Time Keepers ' cadre with the clerical cadre, albeit with a view to opening avenues for promotion for the Time Keepers.
The subsequent order of 5th December, 1966 issued by the Western naval Command could not alter this Presidential Order.
If that subsequent order was found to be inconsistent with the Presidential Order, it had to be ignored for the simple reason that the officers of the Naval establishment were not competent to alter, vary or modify a Presidential Order.
The interpretation placed on that subsequent letter by the Bombay High Court in the judgements delivered on 1st and 2nd March, 1984 does give the impression that the High Court thought that there was no complete merger and the personnel meaning the Time Keeping Department retained their identity and were, therefore, entitled to the additional benefits of over time and productivity linked bonus.
After the judgements were delivered the department instead of approaching this Court thought it wise to undo the mischief by cancelling the subsequent order of 5th December, 1966 which was the source of trouble.
Since the conclusion reached by the High Court was based on the language of the subsequent order of 5th December, 1966, the Tribunal was not bound to follow the same on the cancellation of that order.
We may also state, with respect to the learned judge in the High Court, that we find it difficult to persuade ourselves to his point of view for diverse reasons.
Firstly, the plain language of the text of the Presidential Order manifests a clear intention to merge the cadre of Time Keepers with the clerical cadre on the establishment.
Secondly, the subsequent order of 5th December, 1966 had to be read consistently with the Presidential Order as to fulfil the purpose or objective and not to impede or stifle it.
Thirdly, even if the subsequent order was found to be inconsistent with the Presidential Order in certain respects, the inconsistency had to be ignored for the obvious reason that the officer issuing the order could not have altered or modified the Presidential Order and lastly, if there was any confusion caused by the subsequent order it should have been read harmoniously with the Presidential order Order so as to advance its objective or merger of the Time Keepers ' cadre with the clerical cadre.
In order to appreciate Mr. Mehta 's contention that by the Presidential Order only a notional merger for the limited purpose of providing the Time Keepers with promotional avenues was intended and not actual merger so as to deprive the Time Keepers of their distinct identity, it is necessary to realise that the sole purpose of the exercise 229 indisputably was to make career advancement possible for the Time Keepers.
At the time of issuance of the Presidential Order there were only two layers in the Time Keeping Department of the establishment.
The base level which was fairly large comprised Junior Time Keepers and above them were Senior Time Keepers.
Since there were only two posts of Senior Times Keepers, the prospects of promotion for Junior Time Keepers were very dim.
As there was no further promotional avenue for the Senior Times Keepers, the mobility was restricted and they too suffered on that account.
There was, therefore, large scale stagnation and with a view to overcoming the same the question of merger of the Time Keepers ' cadre with the clerical cadre was examined.
On the same being found feasible, the Presidential Order came to be issued.
The High Court realised that if the Time Keepers do not gather sufficient exprience of administrative work they would not be able to handle responsible work at higher levels in the heierarchy and hence their movement to the ministerial posts is absolutely necessary.
But the High Court resolved this situation by obtaining a statement from the incumbent that he would not claim the benefit of promotion to which he may otherwise be entitled by reason of the merger policy.
Would this advance the policy of merger or fulfil the purpose of opening avenues of promotion for the Time Keepers? If the mobility from Time Keepers ' post to the clerical post is halted on account of the former 's unwillingness to move to the clerical side to gain experience and equip himself to discharge higher responsibilities in future merely to retain the monetary benefit accruing from overtime wages and bonus, it is difficult to understand how even the limited objective of providing promotional avenues to Time Keepers would be satisfied.
And it is all the more difficult to understand how those incumbents who entered the Time Keepers Department after the Presidential Order became effective can claim that they have a vested right to continue in the department because they would suffer a monetary loss if they are transferred to the clerical posts.
The list Annexure C to the appeals would show that except for those at serial Nos.
1 to 3, 8 and 12, the rest of the incumbents had either joined as LDC in the Time Keeping Department after the Presidential Order became effective or had been transferred to that department from the other administrative departments where they were working as LDCs.
It is difficult to understand how those who entered that department after the merger via the other administrative branches of the establishment can refuse to go back on the specious plea that they would suffer a financial loss.
They can have no right to the post in the Time Keeping Department.
So long as they are posted there and are discharging the functions of the Keeper they would be entitled to overtime wages 230 and bonus but on that plea they cannot contend that they are not transferable to the ministerial posts on the establishments.
We have,therefore, no hesitation in concluding that those who joined the Time Keeping Department after the Presidential Order became effective,either by a direct posting in that department as LDC or on transfer to that department,have no right to continue in that department merely because their would entail economic loss since they are governed by the merger scheme which had become operative before their entry in that department.
, They were borne on the common cadreand werenever members of the earlier Time Keeper 's cadre.
But the case of those Time Keepers who were serving as such in the Time Keeping Department,such as, the incumbents at serial Nos.1 to 3, 8 and 12 (S.P.Jadhav,V.S.Khot,P.J. Rodrigues, B.J.Dhamba and V.S. Shinde), must be viewed differently.
They belonged to a separate cadre of Time Keepers at the date of the issuance of the Presidential Order.
Their terms and conditions of service couldnot be altered,varied ormodified to their detriment without giving them an opportunity to exercise their option.
If their transfer outside the Time Keeping Department becomes possible by the merger of their cadre with the clerical cadre but the same entails civil consequences in the form of loss of overtime wages and bonus, justice demands that they must be given an option to choose which course is beneficial to them and if they decide or opt in favour of the status quo they must be allowed to continue as Time Keepers and not be transferred outside that department without their consent, because to do so would render the scheme vulnerable unless the department agrees to make good the economic loss suffered on transfer.
Therefore,so far as those Time Keepers who were serving in the Time keeping Department on and before the date of the implementation of the Presidential Order and who continue to serve in the same department are concerned, the department should give them an option if they are proposed to be transferred outside that department or the department should undertake to make good the economic loss which they are likely to suffer on transfer.
Such a reading of the Presidential Order is permissible on the plain language of theorder and saves it from being rendered vulnerable.
See: The State of Kerala vs M.K.Krishnan Nair & Ors.
, ; at 571.
In the result we allow the appeals partly insofar as they concern the aforenamed five persons to the extent indicated above and dismiss them in respect of the remaining appellants.
Since the writ petitioners 231 are not shown to belong to the category of employees who were borne on the cadre of Time Keepers and were actually working in the Time Keeping Department on or before the issuance of the Presidential Order, their writ petition fails and is dismissed.
There will,however, be no order as to costs in the appeals as well as the writ petition.
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The appellants and Writ Petitioners are serving the Time Keeping Department of the Naval Dockyard, Bombay under the control of the Western Naval Command.
With a view to removing the stagnation in the cadre of Time Keepers for lack of promotion avenues, the Government of India, Ministry of Defence, by its letter dated 14.9.1966 addressed to the Chief Naval Staff conveyed the sanction of the President to the merger of the Time Keepers Cadre with the Clerical Cadre in all Naval establishments.
Consequent to this merger the Jr. Time Keepers were to be re designated as Lower Division Clerks and Sr.
Time Keepers as Upper Division Clerks.
A few days thereafter the office of the Rear Admiral, Western Naval Command, issued a letter dated 5.12.1966 which reads as under: ". . . . . . . 2.
This merger is intended only to give promotion to the Time Keepers along with the LDC/UDC.
Their duties, terms and conditions 220 of Services will remain the same and their hours of work will also continue to be 45 in a week.
Consequent upon the issue of this order and in order to distinguish them from the UDC/LDC and UDC(s)/LDC(s) the suffix "T" will be added after their designation.
As per their conditions of service the employees serving in the Time keeping Department were entitled to the benefit of over time and productivity linked bonus but those belonging to the clerical cadre working in the Administrative Offices of the Dockyard were not entitled to these benefits.
One Thoppil Ramakrishnan on being transferred in August 1980 as UDC(T) in the Spare Parts Distribution Centre, challenged his transfer by a Writ Petition in the High Court of Bombay wherein he contended that as he was initially appointed Jr. Time Keeper and promoted as UDC(T) in 1967 he belonged to a special cadre and could not be transferred to the general cadre as that would entail loss of benefit of over time and bonus.
The High Court treating the letter dated 5th December, 1966 as merely clarificatory, held that there was no complete merger of the two cadres and on the statement of the counsel for the petitioner that the petitioner will not claim the benefit of promotion in the clerical cadre, allowed the writ petition quashing the transfer order.
Realising the situation created by its letter of 5th December, 1966 the western Naval Command cancelled the said letter and consequently inter se transfer became possible.
Thereafter, some employees in the Time Keeping Department were transfered by orders dated 17.4.1985 and 5.10.1985.
The affected employees filed a Writ Petitions in the High Court which were later transfered to the Central Administrative Tribunal.
The Tribunal came to the conclusion that after the cancellation of the Order dated 5.12.1966, the field was held by the Presidential Order dated 14.9.1966, that under the merger Scheme envisaged by the said order the employees in the Time Keeping Department no longer belonged to a separate Cadre and as such the Authorities were entitled to transfer them to other ministerial branches.
The Petitions were accordingly dismissed by a common judgment dated 9th October, 1989.
This judgment is assailed by the concerned employees in the appeals before this court.
One Writ Petition has also been filed by some other 221 employees apprehending similar transfers.
Allowing the appeals partly insofar as they relate to five employees who belonged to the separate cadre of the Time Keeping Department at the date of issuance of the Presidential Order and dismissing the same in respect of the remaining appellants and also dismissing the Writ Petition, this Court, HELD: The letter of 14th September, 1966 clearly refers to the Presidential sanction "to the merger of the cadre of Time Keepers with the clerical cadre in all Naval establishments".
Consequent on this merger, the Junior Time Keepers were to be redesignated as Lower Division Clerks and the Senior Time Keepers as Upper Division Clerks.
There is nothing in this letter to convey that they were to retain their identity as Time Keepers.[227E] The subsequent order of 5th December, 1966 issued by the Western Naval Command could not alter this Presidential Order.
If that subsequent order was found to be inconsistent with the Presidential Order, it had to ignored for the simple reason that the Officers of the Naval establishment were not competent to alter, very or modify a Presidential Order.
[228B] It is difficult to understand how those who entered the Time Keeping Department after the merger order, can refuse to go on transfer on the plea that they would suffer a financial loss.
They can have no right to the post in the Time Keeping Department.
So long as they are there and are discharging the functions of the Time Keeper, they would be entitled to the special benefit of over time and bonus but on that plea they cannot contend that they are not transferable to the ministerial posts.
We have, therefore, no hesitation in concludingthat those who joined the Time Keeping Department after the Presidential Order became effective, have no right to continue in that department merely because their transfer would entail economic loss since they are governed by the merger scheme which had become operative before their entry in that department.
They were borne on the common cadre and were never members of the original Time Keepers Cadre.
[229G 230B] So far as those Time Keepers who were serving in the Time Keeping Department on and before the date of implementation of the Presidential Order and who continue to serve in the same department are concerned, the department should give them an option if they are proposed to be transferred outside that department or the depart 222 ment should undertake to make good the economic loss which they are likely to suffer on transfer.
[230F G] The State of Kerala vs M.K. Krishnan Nair & Ors., , referred to.
|
ivil Appeal No. 1277 of 1979.
From the Judgment and Decree dated 4.8.1977 of the Kerala High Court in A. section No. 640 of 1971.
G. Viswanath lyer, F.S. Nariman, K. Parasaran, K.R. Nambiar, P. K. Pillai, section Balakrishnan, section Ganesh, Joy Joseph, Mrs. A.K. Verma, section Sukumaran for J.B.D. & Co., Baby Krishnan and V.J Francis for the appearing parties.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The dispute before us is regarding the ownership rights over the timber clear felled from about 150 acres of jungle area in Kallar Valley and the right to transport the timber so felled from the said area.
The Kallar Valley area forms part of the tract of land originally known as Kanan Devan Anchanatu Mala in the erstwhile Travancore territory of Kerala State.
This area is generally called the Kanan Devan Hills concession (hereinafter called the 'Concession Area ') ' The Poonjar Rajs, held free hold proprietary rights in the Concession Area.
Originally the Raja was exercising sovereign rights but later on he came under the suzerainty of Travancore State.
The Poonjar Rajsa, by a deed dated July 11, 1877 (hereinafter called 'First Concession '), conveyed the concession area with all the hills and forests therein to one J.D. Munro for cash consideration of Rs.5,000 and a deferred perpetual annual payment of Rs 3,000 from 1884 onwards.
Thereafter on July 26, 1879 a second document was executed between the same parties (hereinafter called 'Second Concession ').
The terms of the first concession were reiterated enuring to Munro, his heirs, successors and assigns absolute right for ever to make all kinds of cultivations and improvements on the Concession Area.
The grant of rights to Munro by the First Concession was ratified by the Travancore Government by a deed of ratification dated November 28, 1878.
Munro assigned the Concession Area to The North Travancore Land Planting and Agricultural Society Limited by a deed dated December 8, 1879.
Thereafter an agreement was executed between the Travancore Government and the Society on August 2, 1886.
264 By virtue of the agreement dated September 18, 1889 between the Poonjar Raja and the Travancore Government and the proclamation of the Maharaja of Travancore dated August 24, 1899 the territory comprising the Kanan Devan Hills including the Concession Area was declared part of the Travancore State.
There were various transfers in respect of the Concession Area but finally by a deed dated July 16, 1900, the Concession Area came to be vested in the Kanan Devan Hills Produce Company Limited, (hereinafter called 'the company ').
In and around May 1963 the company clear felled about 150 acres in the Concession Area for cultivation.
The Company applied to the State Government for grant of free passes to transport the timber from the Concession Area.
The State Government by an order dated November 25, 1966 informed the company that it could not take away timber outside the limits of the Concession Area except in accordance with the Rules of the forest department and on payment of levy in the shape of Kuttikanam.
According to the Government in terms of the deeds of conveyance/ratification the company was liable to pay Kuttikanam in respect of the timber taken out of the Concession Area.
The company filed a suit in the year 1968 in the Court of Subordinate Judge, Kottayam against the State of Kerala and its officers.
In the suit, the company prayed for the following reliefs: (a) A declaration that the plaintiff company has full and unqualified ownership and title over, and right of removal of the said timber from the Concession Area; (b) Declaration that the State has no right to claim seigniorage, Kuttikanam or any other payment in respect of the said timber; (c) A mandatory injunction directing the defendants to grant the necessary free passes for the free transit of the timber outside the Concession Area; (d) Prohibitory injunction restraining the defendants from taking any steps under the order dated 25.11.1966.
The State Government resisted the suit and controverted the interpretation placed by the company on the deeds of conveyance/ ratification.
According to the State the company was only a lessee of the Concession Area and in terms of the deeds of conveyance/ratification the State Government had the absolute right over the trees and 265 timber in the Concession Area.
The company only acquired the right to use and remove the timber subject to the restrictions imposed in the said documents.
It was further contended by the State Government that the title and ownership in the trees and timber in the Concession area always remained with the State Government and the company could only take the timber outside the limits of the Concession Area in accordance with the rules framed by the State Government and on payment of Kuttikanam.
The Trial Court in a detailed and well reasoned judgment dismissed the suit of the company.
The Trial Court on the interpretation of First Concession (Exhibit P 1), Second Concession (Exhibit P 2), deed of ratification (Exhibit P 62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P 64) came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area.
It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee.
It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.
The Court further held that the relevant rules framed under the Travancore Forest Act, 1952 for levy of Kuttikanam were applicable to the timber transported from the Concession Area.
The contention of the company that it was entitled to free passes for transportation of timber outside the Concession Area under the Transit Rules was rejected.
The suit of the company was thus dismissed with costs.
The company went up in appeal before the High Court.
It was contended that the Trial Court misinterpreted the documents P 1, P 2, P 62 and P 64.
It was contended that the Poonjar Raja had conveyed absolute possession to the grantee to be enjoyed perpetually with heritable and transferable right and it ought to have been held that the natural consequence of such a conveyance was to grant the company absolute title to the trees standing on the area so conveyed.
It was argued before the High Court that the State Government had no right over the trees and the timber within the Concession Area.
Before adverting to the various contentions raised by the parties before it the High Court indicated the approach it adopted to the questions involved in the case in the following words: 266 "For resolving the real controversy in the case we do not think there should be an enquiry into the question whether the plaintiff company is the absolute owner of the Concession Area as alleged by them or the company is only a lessee as contended by the defendants.
Nor do we think any decision is necessary here as to whether at the time, the agreement and proclamation of 1899 came into existence, the Poonjar Chief had vested in him any proprietary rights over the Concession Area which he could pass to the government.
We also do not think we should make a general enquiry as to the nature and extent of the rights conveyed and secured by the First Poonjar Concession of 11.7.1877 and second Poonjar Concession of 26.7.1879 (Exs.
P 1 and P2).
We can well proceed in the matter on the basis, as stated by the court below, that absolute rights over the Concession Area had not been conveyed under Exs.
P 1 and P 2, that by virtue of the transactions the plaintiff had only absolute possession with heritable and transferable interest and the right to enjoy the land subject to the terms and conditions declared and defined in the Ratifica tion Deed and agreement of modification, namely Exs.
P 62 and P 64.
The question is what is the plaintiff 's right over the timber and tree growth in the area on the basis of the grant under Exs.
P 1 and P 2, wherein it gets wide rights in regard to the jungles and forest in the Concession Area unqualified rights to clear the land and improve the source.
It is no doubt true that the rights which the plaintiff has acquired as per the grant of the Poonjar Raja are subject to the terms and conditions imposed by the Sovereign power of the Maharaja under exhibit P 62 and P 64.
In short the question for a decision in the appeal will revolve round the interpretation of the relevant clauses in these documents.
" The High Court then considered the contents of the documents P 62 and P 64 and came to the conclusion that the company had full rights over the timber clear felled from the Concession Area and it had right of removal of the timber with the necessary free passes issued under the timber transit rules.
It was further held that the State of Kerala had no right or claim for the seigniorage or Kuttikanam or any other payment in respect of the said timber.
The High Court allowed the appeal of the company and set aside the judgment and decree of the Trial Court.
This appeal via special leave petition is against the judgment of the High Court.
267 The High Court proceeded on the basis that absolute rights over the Concession Area had not been conveyed under the documents of conveyance/ratification and the right to enjoy the land was subject to the terms and conditions declared in the ratification deed P 62 and the agreement of modification P 64.
We agree with the approach of the High Court.
The question, therefore, is what are the company 's rights over the timber and the tree growth in the Concession Area.
This takes us to clause 5 of P 62 and clause 7 of P 64 which are relevant.
Clause fifth of the ratification dated November 28, 1878 Exhibit P 62 is as under: "Fifth: The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved, viz., Teak, Coal teak, Black wood, Aboney, Karinthali Sandalwood.
Should he carry any timber without the limits of the grant it will be subject to the payment of Kuttikanam or customs duty or both as the case may be in the same way as timber ordinarily felled.
In the case of the excepted timber the grantee is required to pay seigniorage according to the undermentioned scale. .
The grantee is bound to deliver to the Poonjar Chief, to enable him to make over to the Sirkar, all ivory, cardamoms and other royalties produced in the land and all captured elephants and he will be paid by the said Chief according to agreement with him the regulated price for the articles of produce and the regulated reward for the elephants.
Clause 7 of the agreement dated August 2, 1886 Exhibit P 64 is as under: "7.
The society, its successors and assigns may use and appropriate to its own use within the limits of the said tract of land all timber except the following and such as may hereafter be reserved, viz., Teak, Coak teak, Black wood, Aboney, Karinthali and Sandalwood.
But such society, its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and 268 customs department for the time being in force.
In the case of the excepted timber the society for itself, its successors and assigns agrees to pay seigniorage according to the undermentioned scale. . .
The society for itself, its successors and assigns agrees to deliver to the said Poonjar Raja or Chief to enable him to make over the same to the government of Travancore, all ivory and cardamoms and other royalties. . captured elephants. .
Mr. Parasaran, learned counsel appearing for the respondent company contended that in P 62 it was provided that the grantee could not carry timber beyond the limits of the grant without payment of Kuttikanam but by the time the agreement P 64 was executed in the year 1886 Kuttikanam had been abolished and as such there was no provision for the payment of Kuttikanam in the document P 64.
Clause 7 of P 64 reproduced above makes it clear that the respondent company may use and appropriate to its own use within the limits of the Concession Area all timber except to the extent mentioned therein.
It was further provided that. . . society, its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and customs department for the time being in force".
It is thus clear that the company has no right under the said clause to carry the unworked timber beyond the limits of the grant.
The company could not fell timber beyond what was necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
Clause 7 clearly indicates that the grantee has no absolute right of ownership over the tree growth and the timber within the Concession Area.
The ownership remains with the Government and the grantee has been given the right to fell the trees for clearing the ground for cultivation and to use the timber for specified purposes within the limits of the grant.
An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie vs State of Kerala, [ K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under: "We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been 269 quite unnecessary.
There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.
We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.
The company acquired the right to fell the trees and use the timber subject to the restrictions imposed in clause 7 of P 64.
Since the respondent company has no right to remove the timber beyond the limits of the Concession Area, the State Government was justified in refusing to permit free transportation of timber from the said area.
We do not agree with Mr. Parasaran that Kuttikanam having been abolished in the year 1884 the respondent company was not liable to pay Kuttikanam while transporting the timber from within the Concession Area.
In Leslie vs State of Kerala (supra) the term "Kuttikanam" was explained as under: "In the Malayalam and English Dictionary by Rev. H. Gundert D. Ph. page 278, 'Kuttikanam ' is defined as meaning 'the price of timber; fee cliambable by the owner for every tree cut down by the renter '.
In 'The Manual of Malabar Law ' by Kadaloor Ramachandra lyer, Chapter, VII, page 44, it is stated: 'Kuttikanam is a mortgage of forests by which the landlord assigns on mortgage a tract of forest land receiving a stipulated fee for every trees felled by the mortgagee, the entire number of the trees, to be cut down and the period within which they are to be felled being expressly fixed in the karar entered into between the parties. .
In the Glossary attached to the Land Revenue Manual (1916) Vol.
IV, at page 883, the word 'Kutti kanam ' is said to mean 'a fee paid to the Sirkar for felling trees other than royal trees and tax paying trees '.
In the 270 Glossary of Administrative Terms, English Malayalam, by the Official Language Committee, at page 302, 'seigniorage ' is defined as meaning. .
We do not think that 'Kuttikanam ' is either a fee or tax.
A tax or fee is levied in the exercise of sovereign power.
We think that in the context 'Kuttikanam ' means the Government 's share of the value of the reserved trees.
" It was further held by Mathew, J. that Kuttikanam being the Government 's share of the value of the trees owned by the Government it has the power to fix the value of the trees.
We agree with the reasoning and conclusions reached by Mathew J. Since the ownership cover the tree growth and timber in Concession area vests with the Government it has a right to impose Kuttikanam on the removal of the trees from within the Concession area.
We may examine the justification for levying Kuttikanam from another angle.
Clause 7 of P 64 states that no unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest department for the time being in force.
The Government of Kerala, in exercise of its rule making power under Section 93 of the Travancore Cochin Forest Act, 1951, framed rules regulating the levy of Kuttikanam on trees, standing on Government land by a notification dated July 9, 1958.
The said rules are reproduced hereinafter.
"TRAVANCORE COCHIN FOREST ACT, 1951 (111 OF 1952) RULES REGULATING THE LEVY OF KUTTIKANAM ON TREES IN GOVERNMENT LANDS.
(Section 93(2)(d)(dd) and (e) Notification No. 14824/58 3/Agri./F.(B) 3 dated 9th July 1958 published in the Gazette dated 15th July 1958 Part In exercise of the powers conferred by sub section (2)(d)(dd) and (e) of Section 93 of the Travancore Cochin Forest Act, 1951 (Act Ill of 1952) the Government of Kerala hereby make the following rules, regulating the levy of Kuttikanam on trees, standing on Government lands, namely: 271 1.
All trees standing on land temporarily or permanently assigned, the right of Government over which has been expressly reserved in the deed of grant or assignment of such land, shall be the absolute property of Government.
It shall not be lawful to fell, lop, cut or maim or otherwise maltreat any tree which is the property of Government without proper sanction in writing granted by an officer of the Forest Department not below the rank of an Assistant Conservator: Provided that in cases where the holder of the land is allowed under the title deed to lop or fell any such tree, such lopping or felling may be done by such holder in the manner and subject to such conditions and payment as may be specified in the title deed in that behalf.
Any lopping or felling of such trees otherwise than in accordance with the conditions and limitation specified in the deed of grant shall be unlawful.
Government may, in the absence of any provision to the contrary in the title deed, sanction the sale of timber which is the property of Government to the holder of the land on which such timber is standing, on payment of Kuttikanam or Seigniorage or such other rates as may be specified by Government in each individual case.
In cases where the title deed specified the rate at which the timber will be sold to the holder of the land, such rates only will be levied.
Explanation: 'Kuttikanam ' means the seigniorage rate that may be in force in the Forest Department from time to time and notified by Government.
The Collector of each District shall forward to the Chief Conservator of Forests a statement showing the full details of the trees standing on such lands at the disposal of Government as may hereafter be granted for permanent cultivation, under the Land Assignment Act and the rules framed thereunder.
On receipt of such statement, the Chief Conservator of Forests will take appropriate action for the disposal of such tree growth within the period allowed under Section 99 of the Forest Act.
272 The Travancore Cochin Forest Act 1951 was repealed by the Kerala Forest Act, 1961 but Section 85(3) of the said Act saves the rules framed under the repealed Act.
It is thus obvious that the rules reproduced above were holding the field at the relevant time.
The trial Judge primarily relied on these rules for holding that the Government was justified in demanding Kuttikanam from the respondent company.
The High Court, however, did not take into consideration these rules while interpreting clause 7 of Exhibit P 64.
We agree with the findings of the trial court to the effect that the above quoted rules read with clause 7 of Exhibit P 64 empowers the State Government to levy and demand Kuttikanam from the respondent company in respect of timber taken out of the limits of the Concession area.
Mr. Parasaran invited our attention to a letter dated May 21, 1932 (Exhibit P 4) from Chief Secretary to Government to the General Manager of the respondent company.
The letter reads as under: "With reference to your letter dated the 25th January, 1928 regarding the payment of seigniorage on reserved trees felled from the K.D.H.P Company 's Concession Area, I have the honour to inform you that Government accept your view that no seigniorage is due from the Company on trees other than the Royal Trees specifically mentioned in Clause 7 of the Agreement and sanction accordingly." Mr. Parasan contended that the State Government interpreted clause 7 of P 64 to mean that no seigniorage (Kuttikanam) was due from the company on trees other than the Royal Trees specified in the said clause.
He argued that in the face of the Government decision in the above letter the Government could not demand Kuttikanam from the respondent company in respect of the non Royal Trees removed from within the limits of the Concession Area.
We do not agree with the contention of the learned counsel.
The letter re produced above refers to the letter dated January 25, 1928 (exhibit P 3) written by the General Manager of the company to the Government.
The letter P l states as under: "The question arose through the Forest Department claiming seigniorage on certain species of timber, used by this Company within the concession area for building purposes, and which have been reserved under the Forest Regulation.
273 The letter also states as under: A ". .
I think it advisable that the whole question of Timber Rights in the Concession should be considered and settled if possible.
" It is no doubt correct that while focusing the controversy in respect of the timber used by the company within the Concession Area the General Manager dealt with the larger question of timber rights in the Concession Area but reading the two letters P 3 and P 4 together the only conclusion which could be reached is that the letter P 4 was with respect to the use of timber by the company within the Concession Area.
The letter P 4 cannot be read to mean that no Kuttikanam was leviable on the timber removed by the respondent company outside the Concession Area.
In any case the wording of clause 7 of P 64 is clear and unambiguous.
The Government letter P 4 is to be read in the light of clear phraseology of clause 7 and not the vice versa.
We allow the appeal and set aside the judgment of the High Court.
We uphold and approve the judgment and findings of the Trial Court.
The suit of the respondent plaintiff is dismissed with costs which we quantify as Rs.5,000 R. N. J. Appeal allowed.
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The dispute between the parties is regarding the ownership rights and right of removal of timber clear felled from 150 acres of jungle area in Kallar Valley in the erstwhile Travancore territory of Kerala State commonly called the Kanan Devan Hills Concession area over which the Poonjar Raja held free hold proprietary rights under the suzerainty of Travancore State.
By a deed dated July 11, 1877 called the 'First Concession ' (Exhibit P 1) the Raja conveyed the concession area with all the Hills and Forests to one J.D. Munro for a certain cash consideration and a deferred perpetual annual payment from 1884 onwards.
This was followed by another deed (exhibit P 2) between the same parties reiterating all the original terms.
This grant to Munro was ratified by the Travancore Government by a deed dated November 28, 1878 (Exhibit P 62).
Munro in turn assigned the area to the North Travan core Land Planting & Agricultural Society Ltd. Later an agreement was executed between the Travancore Government and the Society in August 1886 (Exhibit P 64).
In 1899 the entire territory comprising the Kanan Devan Hills including the concession area was declared part of Travancore State.
After several transfers the concession area finally came to be vested in the Respondent Company in virtue of a Deed dated July 16, 1900.
Somewhere in 1963 the Respondent Company clear felled about 150 acres in the concession area for cultivation and sought permission from the State Government for grant of free passes to carry the felled timber out of the concession area.
The Government by order dated 25.11.1966 informed the company that it could not take out the timber 262 from the concession area without payment of Kuttikanamin terms of the deeds of conveyance/ratification.
Thereupon the company filed a suit against the State praying inter alia for a declaration claiming full ownership, title and right to remove the timber without payment of Kuttikanam, a mandatory injunction directing the defendants to grant free passes for removal of the timber and a prohibitory injunction to restrain it from taking any further steps under its order dated 25.11.1966.
On the interpretation of Exhibits P 1, P 2, P 62 and P 64 the trial court came to the findings that the company did not acquire absolute proprietary rights over the concession area or the trees and timber.
It also held that the Government was justified in demanding Kuttikanam in terms of the Rules framed under the Travancore Cochin Forest Act, 1951.
Accordingly the suit was dismissed.
The Company preferred an appeal to the High Court which was allowed and the decree of the Trial Court set aside.
The decision of the High Court has been challenged by the State in this appeal by way of special leave.
This court while allowing the appeal and setting aside the judgment of the High Court, HELD: The respondent company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.
The company only acquired the right to fell the trees and use the timber subject to the restrictions imposed in clause 7 of the agreement Exhibit P 64.
Since the respondent company has no right to remove the timber beyond the limits of the Concession Area, the State Government was justified in refusing to permit free transportation of timber from the said area.
[269C] Clause 7 states that no unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest department for the time being in force.
[270D] The Government of Kerala, in exercise of its rule making power under Section 93 of the Travancore Cochin Forest Act, 1951 had by a notification dated July 9, 1958 framed rules regulating the levy of Kuttikanam on trees standing on Government land.
[270E] The rules were holding the field at the relevant time and the Government was justified in demanding Kuttikanam from the Company.
[272A B] 263
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Civil Appeal No. 653 of 1991.
284 From the Judgment and Order dated 11.
12.1989 of the Central Administrative Tribunal, Chandigarh in O.A. No. 694 of 1988.
Avadh Behari, A.K. Sharma and Inderjit Singh Mehra for the Appellants.
Dr. Anand Prakash, B. Krishna Prasad and S.M. Ashri for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Leave granted.
Whether family pension payable under the service rules could be bequeathed by means of a will by the deceased employee during his life time, is the question involved in this appeal.
Briefly, the facts giving rise to this appeal are that, Issac Alfred was employed in the Railway Workshop, Jagadhri as a Skilled Mechanic, Tool Shop, he died in harness on 16.10.1984.
On his death a dispute arose between Mrs. Violet Issac, widow of the deceased Railway employee, his sons, daughters and Elic Alfred, brother of the deceased regarding family pension, gratuity and other emoluments, payable by the Railway Administration.
Violet Issac, widow of the deceased employee made an application before the competent Railway Authority for the grant of family pension and for payment of gratuity and other dues to her, her four sons and one daughter, who are appellant Nos. 2 to 6.
The Railway Authorities did not pay any amount to the appellants as an injunction order had been issued by the Sub Judge, 1st Class, Jagadhri in Civil Suit No. 365/85 filed by Elic Alfred, brother of the deceased employee, restraining the appellants from claiming or receiving any amount which were to the credit of the deceased Railway employee towards C.T.D. Account, gratuity, family pension and other dues.
It appears that the relations between late Issac Alfred and his widow Smt.
Violet Issac and the children were not cordial, as a result of which he had made nomination in favour of his brother and further he had executed a will dated 9.9.1984 in favour of Elic Alfred bequeathing all his properties to him including the family pension, gratuity etc.
When the appellants raised claim for family pension and other dues before the Railway Authorities, Elic Alfred filed Civil Suit No. 365/85 for the issue of a permanent injunction restraining the appellants from receiving or claiming any monetary benefits from the Railway Administration.
In his suit Elic Alfred had 285 pleaded that in view of the will, his deceased brother 's widow and children were not entitled to any benefit from the Railway Authorities, instead he was entitled to the deceased 's estate including the right to receive family pension and other dues.
The Civil Court issued an injunction order restraining the appellants from receiving any amount from the Railway Authorities as a result of which the Railway Administration did not pay any amount to them.
The appellants, thereupon, made an application before the Central Administrative Tribunal, Chandigarh for the issue of a direction for the release of the amounts on account of gratuity, group insurance, provident fund, CTD account, and family pension.
The appellants pleaded that the will relied upon by Elic Alfred was a forged one and Elic Alfred was not entitled to receive pensionary benefits.
On an application made by the appellants the suit pending before the Civil Court was also transferred to the Tribunal 's file.
The Tribunal by its order dated 11.
12.1989 held that since the dispute related to rival claims based on title arising from relationship in one case and from a will in the other, it has no jurisdiction to decide the same.
The Tribunal further directed for the transfer of the civil suit to the Civil Court for trial in accordance with law.
The appellants have challenged the order of the Tribunal by means of the present appeal.
The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this Court while issuing notice to the respondents confined the dispute only to family pension.
We would therefore deal with the question of family pension only.
Family Pension Rules 1964 provide for the sanction of family pension to the survivors of a Railway Employee.
Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service.
Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, which ever is earlier.
The Rules do not provide for payment of family pension, to brother or any other family member or relation of the deceased Railway employee.
The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee.
The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension.
Thus, no other person except those designated under the Rules are entitled to receive family pension.
The Family Pension Scheme confers monetary benefit on the 286 'wife and children of the deceased Railway employee, but the employee has no title to it.
The employee has no control over the family pension as he is not required to make any contribution to it.
The Family Pension Scheme is in the nature of a welfare scheme framed by the Railway Administration to provide relief to the widow and minor children of the deceased employee.
Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same.
Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition.
In Jodh Singh vs Union of India & Anr., [ ; this Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow.
The Court observed: "Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased.
If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.
The Court further held that what was not payable during the life time of the deceased over which he had no power of disposition could not form part of his estate.
Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition.
We, accordingly hold that Mrs. Violet Issac the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding, the will alleged to have been executed by the deceased on 9.9.1984 in favour of his brother Elic Alfred.
As regards appellant Nos. 2 to 6 are concerned, it has been stated on behalf of the Railway Administration that they are not minors, therefore, under the Rules they are not entitled to any family pension.
We, accordingly allow the appeal, set aside the order of the Tribunal and direct the respondent Railway Adminstration to sanction family pension in accordance with the Rules to the appellant No. 1 and to pay the arrears within two months.
The respondent 's suit, so far as it relates to the 287 family pension cannot proceed but we do not express any opinion, with regard to other claims raised therein.
It has been brought to our notice on behalf of the respondent Railway Administration that the appellants have been occupying the Railway quarter which had been allotted to late Issac Alfred, even though they are not entitled to occupy the same.
On behalf of the appellants, it was urged that since they had not been paid any dues by the Railway Administration they were not in a position to vacate the premises.
The Railway Administration is free to evict them in accordance with the Rules, only after arrears of family pension are paid to Mrs. Violet Issac.
The Railway Administration will charge rent from the appellants at the rate on which the quarter had been let out to the deceased Railway employee.
There will be no order as to costs.
V.P.R. Appeal allowed.
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On the death of a Railway employee, dispute arose among his wife, sons, daughters and brother for the family pension, gratuity and other emoluments.
The brother of the deceased employee filed a civil suit in the court of Sub judge for a permanent injunction restraining the appellants. the wife, sons and daughter from claiming or receiving any monetary benefits from the Railway Administration, contending that by a will dated 9.9.1984 of the deceased employee, he was entitled to receive the benefits to the deceased employee 's widow.
The Railway Authority did not pay any amount, as an injunction had been issued by the Civil Court.
The appellants there upon made an application before the Central Administrative Tribunal for a direction for the release of the amounts on the grounds that the will was a forged one, and the beneficiary was not entitled to receive pensionary benefits.
The Tribunal held that since the dispute related to rival claims based on title arising from relationship, it had no jurisdiction to decide the same.
It also directed transfer of the case to the Civil Court for trial.
In the appeal to this court on the question was: whether family pension payable under the service rules could be bequeathed by means of a will.
Allowing the appeal, this Court, HELD: 1.
Family Pension Rules, 1964 provided for the sanction of family pension to the survivors of a Railway Employee.
Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower, to the minor children of a Railway servant, who may have died while in service.
Under the Rules, son of 283 the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, whichever is earlier.
The Rules do not provide for payment of Family Pension to brother or any other family member or relation of the deceased Railway employee.
The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee.
The rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family Pension.
Thus, no other person except those designated under the Rules are entitled to receive family pension.
[285E H] 2.
The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it.
The employee has no control over the family pension as he is not required to make any contribution to it.
The family pension Scheme is in the nature of welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee.
[285H 286B] 3.
Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same.
Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary dis position.
[286B C] [The appellant No. 1, widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased on 9.9.1984 in favour of his brother.
As regards appellant Nos. 2 to 6 are concerned, they are not minors, therefore, under the Rules they are not entitled to any family pension.
[286F H] The Railway Administration is free to evict them in accordance with the Rules, only after arrears of family pension are paid to the widow.] [287B C] Jodh Singh V. Union of India & Anr., [1980] 4 S.C.C. 306, followed.
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ivil Appeal Nos.
2959 60 of 1980.
WITH Writ Petition Nos.
5548 50 of 1980.
From the Judgment and Order dated 9.9.
1980 of the Karnataka High Court in W.P. Nos.
20298 of 1979 and 1031 of 1980.
Soli J. Sorabjee, Rajinder Sachhar, H. Raghavendra Rao and Vineet Kumar for the Appellants/Petitioners.
M. Veerappa, K.H. Nobin Singh and P.R. Ramasesh for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The two appeals and the three writ petitions challenge the validity of the provisions of the Mysore Silkworm Seed and Cocoon (Regulation of Production, Supply and Distributions) Act, 1959 (Act No. 5 of 1960), hereinafter referred to as 'the impugned Act '.
The challenge was repelled by the Karnataka High Court by its common judgment dated 9.9.
1980 in two writ petitions, which is the subject matter of appeals.
It is perhaps in view of this judgment that writ petitions No. 5548 5550 of 1980 have been filed directly in this Court raising a similar contention.
At the outset, it is necessary to clarify two important points.
The first is that the validity of the Act above mentioned and certain notifications issued thereunder were challenged in Civil Appeal Nos. 450 and 451 of 1966 and 542 of 1964.
These Civil appeals were disposed of 308 by a judgment of this Court dated 6.1.1967 in State of Mysore & Ors.
vs Hanumiah.
By the said judgment this Court repelled the contentions then put forward.
The validity of certain provisions of the impugned Act had then been challenged on the footing that the said provisions as well as the rules made and the notifications issued thereunder imposed unreasonable restrictions on the fundamental right of the petitioners to carry on trade or business under Article 19(1)(g) of the Constitution.
Again, the Mysore High Court in Mohammed Hussain vs State of Mysore, (W.P. 45 of 1971) and this Court in Syed Ahmed Agha vs State, A. I. R. were called upon to consider contentions as to the validity of certain amendments effected by Mysore Act 29 of 1969 to the impugned Act, in the light of the provisions of Articles 301 to 304 of the Constitution of India.
The contentions were repelled with the result that the statutory regulations providing for protection to readers by the establishment of regulated cocoon markets and forbidding the sale or purchase of silk worm cocoons except in such markets were held to be valid.
The present challenge, however, is on different grounds.
The contention now is that certain amendments effected to the impugned Act by Karnataka Act No. 33 of 1979 have to be struck down as the State Legislature was not competent to enact the same.
Thus, the contention now addressed is different from those which were considered by this Court on the earlier occasions.
The second aspect which we wish to clarify at the outset is that, though several grounds were raised before the High Court as well as in the writ petitions, the argument before us was limited to a single contention.
This was that the impugned provisions lack legislative competence after the enactment, by Parliament, of the Central Silk Boards Act (Act 61 of 1948), (hereinafter referred to as 'the Central Act ') which contains a declaration contemplated under Entry 52 of List I in the Seventh Schedule to the Constitution of India.
We shall be addressing ourselves only to this argument.
Mysore Act 5 of 1960 was passed since it was considered expedient to consolidate the laws providing for the regulation of the production, supply and distribution of silk worm seed and cocoon in the State of Mysore.
This Act contained several restrictions in regard to the production, supply and distribution of silk worm seed and cocoon.
Basically, sections 3, 4, 5, 6, 7 and 8 of the Act required a person to obtain a licence for production, sale and distribution of silkworm seed, for rearing silkworms from silkworm seed, for possession of silkworm seed, for disposal of silkworm cocoons for reeling or for reproduction, for sale or purchase of silkworm cocoons for reeling, and for carrying on the business of reeling silk worm cocoons.
Section 10 enabled the 309 Government to specify the manner of marketing the above goods, the places at which cocoon markets, cocoon market yards and cocoon stores could be located, specify the sericultural areas to be served by each cocoon market, assign zones and markets in which any licensed buyer could carry on his business.
It also provided that all transactions involving the sale or purchase of cocoons in a cocoon market shall be by weight, in open auction and in cash.
The above Act, (and in particular the provisions contained in Sections 6 and 7), was amended by the Karnataka Act 29 of 1969.
But these amendments are not relevant for our present purposes.
There were further amendments effected to the Act by Karnataka Act 33 of 1979.
The petitioner is challenging the amendments carried out by this Act.
The principal amendments carried out were, briefly, these.
References to 'Mysore ' were replaced by references to 'Karnataka '.
In the preamble, in addition to the 'silk worm seed ' and 'cocoon ', reference was added to silk yarn '.
Definition of 'silk yarn ' and various categories thereof were inserted Section 5A was introduced under which no person could be in possession of silk yarn in excess of a prescribed quantity unless he is a reeler, a licensed trader, a twister, a weaver or a person authorised in writing by the prescribed officer.
Section 10A provided for the establishment of silk exchanges at specified places.
It enabled the Government to appoint for each silk exchange, a silk Market Officer and also to constitute a marketing committee with the Market Officer as the Chairman and with representatives of reelers, twisters and traders for regulating the conduct of business in the exchange.
It also provided that all transactions involving sale or purchase of silk yarn in a silk exchange should be by weight, by open auction and in cash.
Section 8A placed certain restrictions on reelers, twisters and traders after the establishment of a silk exchange.
It prohibits a reeler or twister from selling or agreeing to sell silk yarn reeled or twisted by him.
It permitted only licensed traders to purchase or agree to purchase silk yarn from a reeler or a twister and that too only in a silk exchange and in accordance with such conditions and in such manner as may be prescribed.
Sub section (2) of section 8A provided that no person shall, except in such silk exchange, use, or permit the use or assist in the use of any building, room, tent, enclosure, vehicle, vessel or place for the sale of silk yarn by or purchase of silk yarn from a reeler or a twister or in any manner aid or abet the sale or purchase of silk yarn.
To put it very shortly, the amendments of 1979 imposed on the production, supply, distribution and sale of silk yarn restrictions in a manner more or less analogous to those that earlier existed in respect of silk worm seeds and cocoons.
310 The short point made on behalf of the petitioners is that any legislation in respect of 'silk industry ' can be enacted only by Parliament and the State Legislature is incompetent to legislate on this matter.
This is because Section 2 of the Central Silk Board Act, which reads as follows: "It is hereby declared that it is expedient in the public interest that the Union should take under its control the silk industry.
" enacts a declaration in terms of Entry 52.
This removes the 'silk industry ' from the purview of the State 's legislative powers thus rendering the State legislature incompetent to legislate thereafter on this topic.
In this context, it is emphasised that originally the Central Act and the declaration in section 2 had been restricted to 'raw silk industry ' but, by an amendment of 1953 effective from 25.3.1954, their scope was widened to include the entire 'silk industry '.
The long title of the Central Act is that it is "an Act to provide for the development under Central control of the silk industry and for that purpose to establish a Central Silk Board".
Under Section 4, the Central Government is empowered to constitute a Board to be called the Central Silk Board with a constitution as set out in sub section (3).
The functions of the Board are set out in section B, which may be set out: "(1) It shall be the duty of the Board to promote the development of the silk industry by such measures as it thinks fit.
(2) Without prejudice to the generality of the foregoing provision, the measures referred to therein may provide for (a) undertaking, assisting or encouraging scientific, technological and economic research; (b) devising means for improved methods of mulberry cultivation rearing, developing and distributing healthy silkworm seeds, reeling or, as the case may be, spinning of silkworm cocoons and silk waste, improving the quality and production of raw silk, if necessary, by making it compulsory for all raw silk to be marketed only after the same has been tested and graded in properly equipped raw silk conditioning houses: 311 (c) x x x x x (d) improving the marketing of raw silk; (e) the collection of statistics from such persons as may be prescribed; (f) carrying out any other duties which may be vested in the Board under rules made under this Act.
" The Board has also a duty to advise the Central Government on all matters relating to the development of the raw silk industry and to prepare and furnish such reports relating to the industry as the Central Government may call for from time to time.
Two further provisions of the Central Act which need to be referred to are Ss. 10 and 13.
section 10 enables the Central Government to levy and collect as a cess, a duty of excise on all filature raw silk and on all spun silk reeled in the territories of India.
D Section 13 empowers the Central Government, by notification, to make rules to carry out the purposes of this Act.
Sub section (2) specifies certain enumerated matters in relation to which rules could be framed but these mostly relate to the functioning of the Board the only two topics on which such rules could be framed which may be relevant purposes are those contained in clause (xviii), (xix) and (xx) which read as follows: "(xviii) the collection of any information or statistics in respect of raw silk or any product of silk; (xix) the manner in which raw silk shall be graded and marketed; (xx) any other matter which is to be or may be prescribed.
In the context of these provisions the short argument which has been pressed before us was dealt with by the High Court in paragraphs 13 and 14 which can be conveniently set out: 13.
The first question to be examined in this context is, whether the amending legislations are beyond the legislative competence of the State Legislature.
It was urged that silk industry is a controlled industry declared by Parliament 312 by law to be expedient in the public interest under Entry 52 of List 1.
By section 2 of the Central Silk Boards Act, 1948.
Parliament has declared that it is expedient in the Public interest that the Union should take under its control the silk industry.
Again, by Section 2 of the Industries (Development and Regulation) Act, 1951 Parliament has declared that it is expedient in the public interest that the Union should take under its control the industries specified in the first Schedule to the Act.
Item 23(4) of the first Schedule thereunder specifies "textile (including those dyed, printed or otherwise processed) made wholly or part of silk, including silk yarn and hosiery".
Having regard to these provisions and Entry 52 of List I of the Seventh Schedule, the State Legislature, as urged for the petitioners, has no power to enact the impugned Acts: 14.
It seems to us that this argument is bereft of substance.
It is now well settled by a series of pronouncements of the Supreme Court commencing with Tika Ramji and Others vs State of Uttar Pradesh and Others, A.I.R. 1956 S.C. page 676 down to the decision in Ganga Sagar Corporation Ltd. vs State of Uttar Pradesh and Others, A.I.R. 1980 S.C. page 286 that merely because an industry is controlled industry as declared by Parliament under Entry 52 in List I, the State is not deprived of its legitimate power to legislate within its own sphere in respect of such industry.
Referring to the scope of Entry 52 of List 1, in the context of legislation dealing with regulation of supply and purchase of sugar cane required for use in sugar factories.
Supreme Court in Tika Ramji 's, A.I.R. 1956 S.C. page 676, case observed: [Ibid Note 12 pages 695 6961: "Industry in the wide sense of the term would be capable of comprising three different aspects: (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry.
The raw materials would be goods which would be comprised in Entry 27 of List 2.
The process of manufacture or production would be comprised in Entry 24 of List 2 except where the industry was a controlled industry when it would fall within Entry 52 of List 1 and the products of the industry 313 would also be comprised in Entry 27 of List 2 except where they were the products of the controlled industries when they would fall within Entry 33 of List 3.
" It is clear from the above observations that it is not all aspects of the industry (that) fall within the scope of Entry 52 of List 1.
It is only one aspect of the industry, that is, the process of manufacture or production that falls under Entry 52 of List 1.
It does not include raw materials used in the industry or the distribution of the products of the industry.
This view was reaffirmed by the Supreme Court in Harakchand Ratanchand Banthia and Others vs Union of India and Others, A.I.R. 1970 S.C. page 1453, and in the Kannan Devan Hills Produce Company Ltd. vs The State Of Kerala, A.I.R. 1972 S.C. 2301 and Ganga Sugar Corporation Ltd. vs The State of Uttar Pradesh, A.I.R. 1980 S.C. 286.
The question that arose in those cases was the scope and effect of Entry 52 of List I in relation to Entries 24 and 27 of List 11 and Entry 33 of List III.
The effect of these decisions is that though expressions in legislative entries refer to broad topics and fields of legislation and require a liberal construction, and though the particular expression 'industries ' in Entry 52 of List I in its wide sense may comprise many aspects, however, having regard to the scope of other entries in the other lists, the ambit of Entry 52 of List I should be limited and confined only to the 'process of manufacture or production of an industry. ' The impugned legislations do not fall into this category and we, therefore, reject the contention urged for the petitioners.
" It will at once be seen that the point raised by the petitioners/ appellants has been repelled by the High Court on the basis of a series of decisions of this Court regarding scope of Entry 52 of List I in the Seventh Schedule to the Constitution.
The High Court has pointed out that when Entry 52 talks of control of industry it does not mean all aspects of the industry in question.
An industry comprises of 3 important aspects (i) raw materials (ii) the process of manufacture or production; and (iii)the distribution of the products of the industry.
314 Legislation in regard to raw materials would be permissible under Entry 27 of List 2, notwithstanding a declaration of the industry under Entry 52 to be one within the purview of parliamentary legislation.
The process of manufacture or production can be legislated on by States under Entry 24 of List 2 so long as the industry is not a controlled industry within the meaning of Entry 7 or Entry 52 of List I. So far as the third aspect viz. the distribution of the products of the industry are concerned, the State Legislature would be quite competent to legislate thereto in regard thereto under Entry 27 of List II.
However, when the industry is also a controlled industry legislation in regard to the products of the industry would be permissible by both the Central and the State Legislatures by virtue of Entry 33 of List 3.
This in short is the decision of the High Court based, as already pointed out on a series of decisions of this Court.
Observations by this Court to a like effect in Calcutta Gas Co. (P) Ltd. vs State, [1962] Supp. 3 S.C.R. 1 may also be seen.
We entirely agree with this view.
On behalf of the appellants/petitioners, Shri Soli Sorabji contended that the validity of the enactment has now to be tested in the light of the decision of this Court in I.T.C. Ltd. & Ors.
vs State of Karnataka & Ors.
, [19851 Supp.
S.C.C. 476, where in, in a similar context, a State legislation was held to be ultra vires.
He also brings to our notice that the correctness of this decision has been doubted by a Bench of this Court and the matter has been referred to a larger Bench and is pending consideration by such a larger Bench.
He, therefore, submits that we should either hold following the above decision, that the State legislation in this case is also incompetent or we should refer this matter also to a larger Bench.
We are of the opinion that it is unnecessary, for the purposes of the present case, to consider the contentions raised in the I. T. C. case (supra).
That was a case in which the State enactment was held to be competent by the High Court on the narrow ground that the central legislation covered only virginia tobacco and did not deal with the industry in so far as it related to other varieties of tobacco.
On a consideration of the provision of the Act, this Court came to the conclusion that this interpretation of the Act was not correct and that the central legislation did purport to regulate and control 'the entire tobacco industry.
In the light of this conclusion the court declared the State law to be incompetent, having regard to the provisions of Entry 52 of List I and the declaration in the Indian Tobacco Act under that provision.
In the present case, however, the matter is on a totally different footing.
It is true that the Central Silk Board Act purports to 315 control the raw silk industry in the territory of India.
But, as pointed out by the High Court in the light of the earlier decisions of this Court therein referred to the control of the industry vested in Parliament was only restricted to the aspect of production and manufacture of silk yarn or silk.
It did not obviously take in the earlier stages of the industry, namely, the supply of raw materials.
For instance, as already pointed out, even in regard to the silk industry, the reeling, production, development and distribution of silkworm seeds and cocoons was regulated by Act 5 of 1960.
These items can be perhaps legitimately described as the raw materials of the silk industry.
The control being vested in Parliament under Entry 52 of silk industry did not in view of the earlier ruling of this Court affect the control over these raw materials.
This is perhaps the reason why the industry did not challenge the provisions of the 1959 Act, when it was originally enacted, on the ground that is now being put forward.
The present legislation, as a result of the amendments, controls the supply and distribution of the goods produced by the industry.
As rightly pointed out by the High Court this is the third aspect of the industry which falls outside the purview of the control postulated under Entry 52.
In other words, though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act and the declaration in section 2 thereof, that declaration and Entry 52 do not in any way limit the powers of the State Legislature to legislate in respect of the goods produced by the silk industry To interpret Entry 52 otherwise would render Entry 33 in List 3 of the Seventh Schedule to the Constitution otiose and meaningless.
In this view of the matter the limitation contained in Entry 52 does not affect the validity of the present legislation.
This is an aspect which was not touched upon and which did not arise in the Indian tobacco case.
There both the Central Act and the State Act purported to legislate in regard to the industry, namely, in regard to the production and manufacture of tobacco.
In view of our conclusion above, the State legislation would be quite valid unless it is repugnant to the provisions of a Central legislation on the subject.
A persual of the Central Act makes it clear that the pith and substance of the legislation is the constitution of a silk Board for research into the scientific, technological and economic aspects of the industry.
It does not have anything to do with the aspects covered by entry 33 in List III.
There is, therefore, no infirmity in the legislation under consideration.
316 In this view of the matter, we agree with the conclusion reached by the High Court.
As this is the only point that was argued before us we dismiss the appeals and writ petitions but make no orders regarding costs.
G.N. Appeals and Petitions dismissed.
|
The Mysore Silkworm Seed and Cocoon (Regulation of Production, Supply and Distribution) Act, 1959 provided for the regulation of production, supply and distribution of silk worm seed and cocoon in the State of Mysore.
The said Act was amended in 1969 and 1979.
The 1979 amendments imposed restrictions on the production, distribution and sale of silk yarn, and were analogous to the restrictions imposed earlier in respect of silk worm seeds and cocoons.
The appellants filed Writ Petitions before the High Court challenging the validity of the provisions of the Act on several grounds, Including lack of legislative competence since the Central Silk Boards Act, 1948 has already been passed by the Parliament The High Court negatived the contentions and dismissed the Writ Petitions.
The present appeals challenged the correctness of the said judgment.
The Writ Petitions filed directly in this Court also challenged the validity of the Provisions of the said Act.
The main contention raised in these matters was that the Provisions of the Act lack legislative competence after the enactment by Parliament of the Central Silk Boards Act, 1948 which contained a declaration contemplated under Entry 52 of List I in the Seventh 306 Schedule to the Constitution of India, taking the Silk industry within the purview of Parliamentary legislation.
Dismissing the matters, this Court, HELD: 1.
Legislation in regard to raw materials would be permissible under Entry 27 of List II, notwithstanding a declaration of the industry under Entry 52, to be one within the purview of parliamentary legislation.
The process of manufacture or production can be legislated on by States under Entry 24 of List II so long as the industry is not a controlled industry within the meaning of Entry 7 or Entry 52 of List 1.
So far as the distribution of the products of the industry is concerned, the State Legislature would be quite competent to legislate under Entry 27 of List II.
However, when the industry is also a controlled industry, legislation in regard to the products of the industry would be permissible by both the Central and the State Legislatures by virtue of Entry 33 of List III.
[314A C] Calcutta Gas Co. (P) Ltd. vs State, [1962] Supp.
3 S.C.R. 1, relied on 2.
It is true that the Central Silk Boards Act purpots to control the raw silk industry in the territory of India.
But the control of the industry vested in Parliament was only restricted to the aspect of production and manufacture of silk yarn or silk.
It did not obviously take in the earlier stages of the industry, namely, the supply of raw materials.
Even in regard to the silk industry, the reeling, production, development and distribution of silkworm seeds and cocoons was regulated by the Mysore Silkworm Seed and Cocoon (Regulation of Production, Supply and Distribution) Act, 1959.
These items can perhaps be legitimately described as the raw materials of the silk industry.
The control being vested in Parliament under Entry 52, of silk industry, did not affect the control over the raw materials.
That is perhaps the reason why the industry did not challenge the provisions of the Act, when it was originally enacted, on the ground that is now being put forward.
The present legislation, as a result of the amendments, controls the supply and distribution of the goods produced by the industry.
Though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act and the declaration in section 2 thereof, that declaration and Entry 52 do not in any way limit the powers of the State Legislature to legislate in respect of the goods produced by the silk industry.
To interpret Entry 52 otherwise would render Entry 33 in List III of the Seventh Schedule 307 to the Constitution otiose and meaningless.
In this view of the matter the limitation contained in Entry 52 does not affect the validity of the present legislation.
[314H; 315A F] I.T.C. Ltd. & Ors.
vs State of Karnataka & Ors.
, [1985] (supp.) S.C.C. 476, distinguished.
The State legislation would be quite valid unless it is repugnant to the provisions of a Central legislation on the subject.
A perusal Of the Central Act makes it clear that the pith and substance of the legislation is the constitution of a silk Board for research into the scientific, technological and economic aspects of the industry.
It does not have anything to do with the aspects covered by Entry 33 in List III.
There is, therefore, no infirmity in the State Legislation.
[315G H]
|
ON: Criminal Appeal No. 50 of 1979.
From the Judgment and Order dated 23.12.1977 of the Delhi High Court in Criminal Appeal No. 162 of 1975.
R.K. Garg, R.K. Jain, Ranjan Mahapatra and P.K. Jain for the Appellant.
V.C. Mahajan, Ashok Bhan (NP) and Ms. A. Subhashini (NP) for the Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The appellant, the sole accused in this case, has been convicted under Section 302 I.P.C. and sentenced to imprisonment for life by the High Court of Delhi for causing the murder of one Champat Rai, the deceased in the case.
The prosecution case mainly rests on the evidence of P.W. 2, the sole eye witness.
Learned counsel for the appellant contended that the uncorroborated testimony of P.W. 2 is not wholly reliable and therefore the conviction cannot be sustained.
However, we may at this stage point out that the main submission has been that even if the prosecution case is to be accepted, an offence of murder is not made out as the accused was entitled to the right of private defence.
Even otherwise, according to the learned counsel, having regard to the fact that as the appellant is alleged to have inflicted only a single injury which proved fatal, the offence committed would be one amounting to culpable homicide.
To appreciate these submissions in a proper perspective, we 205 think it necessary to state the facts of the case.
The deceased was married to Agya Devi examined as P.W. 3.
He lived with his wife in a house in East Azad Nagar, Shahdra, Delhi.
In the adjoining house were living his mother, P.W. 1 and his two brothers P.Ws 2 and 5.
The appellant was married to a cousin of Agya Devi, P.W. 3 and he used to visit the house of the deceased ostensibly as a relative.
The deceased, P.Ws 1,2 and 5 objected to the appellant 's visit as they suspected illicit relation between the appellant and Agya Devi P.W. 3, wife of the deceased.
On August 18, 1973 at about 11 P.M. when the deceased was not in the house , the appellant came to visit Agya Devi.
A few minutes later the deceased also came home and he objected to the presence of the appellant.
On this there was an altercation and exchange of hot words.
Then the appellant took out a kirpan (churra) from his waist and stabbed the deceased in the chest.
The deceased fell down crying that the appellant has killed him.
The appellant with the weapon ran out of the house.
The incident was witnessed by P.W. 2 from the roof where he had retired for sleeping during the night.
P.W. 2 and his another brother P.W. 5 chased the appellant but as the appellant who was armed with a lethal weapon threatened them and made good his escape.
On return they found the deceased dead.
P.W. 3 was sitting next to the body and was crying.
The information was sent to the police and P.W. 18, the Sub Inspector, Kotwali Police Station came to the scene of occurrence and recorded the statement of P.W. 2 on the basis of which the case was registered against the appellant.
He seized certain incriminating articles, held the inquest and sent the dead body for post mortem.
He also recorded the statement of the material witness.
One of the recoveries made by him consisted of a sheath of the kirpan.
The Doctor, P.W. 17, examined the dead body and conducted the post mortem.
He found one incised stab wound on the left chest which proved fatal.
The particulars of the injury are: (1) One incised stab wound, horizontally placed on the (L) side of the chest 1" lateral to the left side and 2" below and medial to the (L_) Nipple size 1" x 1/2" x with spindle shaped appearance and with either margins pointed.
The margins of the wound were smooth and the collection of blood in the soft tissues.
(2) One incised wound over right little finger at the base of second phalynx on dorcal surface size 3/4" x 4/10" x bone deep.
There is collection of blood in the soft tissues and there was cut 206 mark on the base of second phalnyx right little finger.
The wound was bandaged with a piece of bandage and cotton soiled in blood.
The wound is not spindle shaped in appearance.
The margins were smooth.
This injury was a simple one and not due to a separate blow.
The Doctor opined the injury NO.1 was sufficient to cause death in the ordinary course of nature.
The cause of death was haomorrhage and shock due to injuries.
The accused was arrested on 28.8.73 and at his instance the kirpan was recovered.
After completion of the investigation, the charge sheet was laid.
The accused pleaded not guilty and denied the recoveries.
The prosecution examined P.W. 2, the brother of the deceased and P.W. 3 Agya Devi, wife of the deceased.
But P.W. 3 turned hostile.
Consequently the prosecution was left with the testimony of P.W. 2, the remaining eye witness.
Both the courts below relied on the evidence of P.W. 2 and they also held that his evidence was corroborated by that of P.Ws 1 and 5.
As hereinbefore mentioned, the learned counsel for the appellant submitted that the evidence of P.W. 2 on which the case entirely rests, cannot be accepted.
We have gone through his evidence carefully as well as that of P.Ws. 1 and 5.
The evidence of P.W. w does not suffer from any serious infirmity.
At any rate there is other corroborative evidence also.
We see absolutely no reason to disagree with the findings of the courts below regarding their evidence.
The learned counsel, however, submitted that the accused must have acted in right of self defence.
According to the learned counsel, P.W. 2 himself has deposed that there was exchange of hot words between the appellant and the deceased which would have resulted in a fight and the appellant having reasonably apprehended danger to his life, inflicted the injury on the deceased in self defence.
We see no basis for this submission.
P.W. 2 has no doubt stated that there was exchange of hot words between the appellant and the deceased but he did not speak about any fight between the two.
On the other hand his evidence shows that when the deceased came and questioned the accused then there was exchange of hot words.
The accused immediately took out a kirpan (churra) from his waist and stabbed the deceased.
Both the courts below also have rightly rejected this plea.
Therefore we see absolutely no grounds to come to a different conclusion.
207 The next and rather the main submission is that the offence committed by the appellant would only amount to culpable homicide inasmuch as he has inflicted only one injury.
In support of his submission, he relied on some of the decisions of this Court.
In Tholan vs State of Tamil Nadu, the accused who dealt a single knife below on the chest found to be sufficient to cause death, was convicted under Section 304 Part II I.P.C., disagreeing with the contention on behalf of the State that Clause III of Section 300 I.P.C. would be attracted in such a case.
In arriving at such a conclusion, this Court took into consideration various surrounding circumstances namely that the presence of the deceased at the scene of occurence was wholly accidental and that the accused dealt only one blow.
It must also be mentioned that the deceased, who was a stranger in that case, came out of his house and cautioned the accused not to indulge in abusive language as ladies were present in that area.
The accused thereupon questioned him and when both were remonstrating, he took out a knife from his waist and stabbed the deceased on the right side of the chest.
On these facts, this Court held: "We are satisfied that even if Exception I is not attracted, the requisite intention cannot be attributed to the appellant.
But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death.
In such a situation, he would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code.
" In support of this view, reliance is placed on some earlier decision of this Court in Jagrup Singh vs State of Haryana, ; ; Randhir Singh vs State of Punjab, ; Kulwant Rai vs State of Punjab, ; Hari Ram vs State of Haryana, ; Jagtar Singh vs State of Punjab, and Ram Sunder vs State of U.P., Criminal Appeal No. 555/83 decided on 24.10.1983.
The learned counsel submitted that the observations made in these cases apply on all fours to the facts of this case.
According to him, there was an altercation and during the same the appellant suddenly whipped out a kirpan and inflicted only one injury and it is therefore reasonable to infer that he would not have intended to cause that particular injury and consequently Clause Thirdly of Section 300 is not attracted.
The submission though put forward in a simple way leads to an important legal quandary regarding the interpretation of Clause Thirdly Section 300 I.P.C. which is considered be a 208 difficult and interact issue by the courts.
However, Virsa Singh vs State of Punjab, ; is considered to be an authoritative pronouncement in this regard.
But perhaps inspired by some of the decisions rendered thereafter both by the High Courts and the Supreme Court there is a marked change in the trend of the contentions regarding the scope of Clause Thirdly Section 300 I.P.C.
It has reached a stage over simplification and it is very often argued that whenever death is due to a single blow the offence would be a culpable homicide and not murder.
Somewhat to the same effect is the contention in the instant case.
In our view it is fallacious to contend that when death is caused by a single blow Clause Thirdly is not attracted and therefore it would not amount to murder.
The ingredient `Intention ' in that Clauses is very important and that gives the clue in a given case whether offence involved is murder or not.
For the purpose of considering the scope of Clause 3 it is not necessary for us to embark upon an examination of the entire scope of Section 299 and 300 I.P.C.
It is enough if we start with Virsa Singh 's case.
Clause Thirdly of Section 300 I.P.C. reads thus: "3rdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or " We may note at this stage that `intention ' is different from `motive ' or `ignorance ' or `negligence '.
It is the `knowledge ' or `intention ' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder.
Therefore, it is necessary to know the meaning of these expressions as used in these provisions.
Before doing so we shall first refer to the to the ratio laid down in Virsa Singh 's case and the meaning given to the expression `intention '.
The appellant Virsa Singh was sentenced to imprisonment for life under Section 302 I.P.C.
There was only one injury on the deceased and that was attributed to him.
It was caused as a result of the spear thrust and the Doctor opined that the injury was sufficient in the ordinary course of nature to cause death.
The Courts also found that the whole affair was sudden and occurred on a chance of meeting.
Peritonit is also supervened which hastened the death of the deceased.
It was contended that the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in 209 the ordinary course of nature and therefore the offence was not one of murder.
This contention was rejected.
After analysing the Clause Thirdly it is held the Court that the prosecution must prove: "First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; there are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
" The Court Further added thus: "One of these four elements is established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Sec.
300, 3rdly.
It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two).
It does not even matter that there is no knowledge that an act of that kind will be likely to cause death.
Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of of nature to cause death.
No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder.
If they inflict injuries of that kind, they must face the consequences; and they can 210 only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
" (emphasis supplied) The learned Judge also observe thus: "In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did.
Once that intent is established (and no other conclusion is reasonable possible in this case and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.
" Adverting to the contention that there is only a single blow, it is further held: "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present.
If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intend that the section requires is not proved.
But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it.
Whether he knew of its seriousness, or intended serious consequences, it neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflicit an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.
But whether the intention is there or not is one of fact and not one of law.
Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
" 211 At another passage which has to be noted in this context reads thus: "It is true that in a given case the enquiry may be linked up with the seriousness of the injury.
For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder.
But that is not because the prisoner did not intended the injury that he intended to inflict to be a serious as it turned out to be but because he did not intend to inflict the injury in question at all.
His intention in such a case would be to inflict a totally different injury.
The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony.
It is not one for guesswork and fanciful conjecture.
Referring to these observations, Divisional Bench of this Court in Jagrup Singh 's case observed thus: "These observations of Vivian Bose, J. have become locus classicus.
The test laid down in Virsa Singh 's case for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.
" The Division Bench also further held that the decision in Virsa singh 's case has throughout been followed as laying down the guiding principles.
In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended.
In other words the 3rd Clause consists of two parts.
The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature.
Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury.
whereas the second part whether it was sufficient to cause the death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury.
The language of Clause Thirdly of Section 300 212 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that Clause.
The `intention ' and `knowledge ' of the accused are subjective and invisible state of mind and their existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances.
The framers of the code designedly used the words `intention ' and `knowledge ' and it is accepted that the knowledge of the consequences which may result in doing an act is not the samething as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified harmful consequences would or could follow.
But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue.
As compared to `knowledge ', `intention ' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.
Kenny in "Outline of Criminal Law" (17th Edition at page 31) has observed: "Intention: To intend is to have in mind a fixed purpose to reach a desire objective; the noun `intention ' in the present connexion is used to denote the state of mind of a man who not only forsees but also desires the possible consequences of his conduct.
Thus if one man throws another from a high tower or cuts off his head it would seem plain that the both foresees the victim 's death and also desires it: the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes.
It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed.
Again, a man cannot intend to do a thing unless he desires to do it.
It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it.
That is to say he desires the lesser of two evils, and therefore, has made up his mind to bring about that one." Russel on Crime (12th Edition at Page 41) has observed: 213 "In the present analysis of the mental element in crime the word `intention ' is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so.
He shapes his line of conduct so as to achieve a particular end at which he aims.
" it can thus be seen that the `knowledge ' as contrasted with `intention ' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive.
On the otherhand, `intention ' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end.
it means shaping of one 's conduct so as to bring about a certain event.
Therefore in the case of `intention ' mental faculties are projected in a set direction.
Intention need not necessarily involve premediation.
Whether there is such an intention or not is a question of fact.
In Clause Thirdly the words "intended to be inflicted" are singnificant.l; As noted already, when a person commits an act, he is presumed to expect the natural consequences.
But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature.
However, the presumption arises that he intended cause that particular injury.
In such a situation the Court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.
However, as pointed out in Virsa Singh 's case the weapon used, the degree of force released in wielding it, the antecedent relation of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors.
These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused.
In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same.
Likewise there may be circumstances in some cases which attract the first exception.
In such cases different considerations arise and the Court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 I.P.C. is attracted.
In the present enquiry we need not advert to that aspect since we are concerned only with scope of clause Thirdly of Section 300 I.P.C. 214 The decision in Virsa Singh 's case has throughout been followed in a number of cases by the High Courts as well as by the Supreme Court.
Such decisions are too numerous and it may not be necessary for us to refer to all those cases.
However, it would be useful to refer to a few decisions which have a bearing to the point in issue.
In Chahat Khan vs State of Haryana, the deceased was waylaid by the accused who were armed with lathis.
The accused had both gun and a lathi but he used only the lathi and struck a blow on the head with sufficient force and the solitary below with the lathi was found to be sufficient in the ordinary course of nature to cause death and it was held that the case fell within clause Thirdly as there was clear intention to cause such bodily injury which in the ordinary course of nature was sufficient to cause death.
In Chamru Budhwa vs State of Madhya Pradesh, AIR 1954 SC 652 there was exchange of abuses between the two parties armed with lathis and in the course of the fight, the accused struck one lathi blow on the head of the deceased which causes a fracture of the skull resulting in death, and it was held that he had given the blow with the knowledge that it was likely to cause death.
In Willie (Williams) Slaney vs State of Madhya Pradesh, there was a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey stick had been given on the head.
It was held that the offence amounted to culpable homicide punishable under Section 304 Part II I.P.C.
In Harjinder Singh (alias Jinda) vs Delhi Admn.
, ; the facts are that there was a sudden commotion and when the deceased intervened in the fight, the accused took out a knife and stabbed the deceased and the deceased was in crouching position presumably to intervene when he received the blow.
Though the injury was found sufficient in the ordinary course of nature to cause death.
, he was convicted for the offence of culpable homicide.
The intention to cause that particular injury was not present.
To the same effect is the decision in Laxman Kalu Nikalji vs State of Maharashtra; , where the accused lost his temper and took out a knife and gave one blow during a sudden quarrel.
In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not and it is held that circumstances like a sudden quarrel in a fight or when the deceased intervenes in such a fight, would create a doubt about the ingredient of intention as it cannot definitely be said in such circumstances that the accused aimed the blow at a particular part of the body.
When an accused inflicts a blow with a deadly weapon the presumption is that he intended to inflict that injury but 215 there may be circumstances like those, as mentioned above, which rebut such presumption and throw a doubt about the application of clause Thirdly.
Of course much depends on the facts and circumstances of each case.
Now let us examine some of the cases relied upon the learned counsel for the appellant.
In Kulwant Rai 's case a Bench consisting of D.A. Desai and R.B. Misra, JJ.
held in a hit and run case that where it cannot be said that the accused intended to inflict the very fatal injury, clause Thirdly is not attracted.
That was a case were only one blow was given with the dagger in the epigastrium area and the facts would go to show that there was no pre meditation, no prior enmity and a short quarrel preceded the assault.
However, we do not find any discussion about the scope of clause Thirdly.
Randhir Singh 's case was decided by a Bench consisting of D.A. Desai and Baharul Islam, JJ.
In that case, a single head injury was inflicted by a college student on the deceased with a weapon supplied by his father and the deceased died after six days and there also an assault was preceded by a quarrel between the father of the accused and the deceased.
The Bench observed that: "Merely because the blow landed on a particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury.
The weapon was not handy.
He did not possess one.
Altercation took place between his father and the deceased and he gave blow with kassi.
In our opinion in these circumstances it would be difficult to say that the accused intended to cause that particular injury.
" Before the same Bench, in Gurmail Singh and others vs State of Punjab, this question again came up for consideration.
In that case, an indecent joke cut by the accused with the wife of a P.W. led to a quarrel and the deceased who was nowhere in the picture tried to intervene, two of the accused gave some blow on him.
Then Gurmail Singh, the appellant therein, gave a single blow with spear on the chest which proved fatal.
It was contended by the State that clause Thirdly of Section 300 I.P.C was attracted.
it is observed that: "But it was said that the case would be covered by Para 3 of Section 300 in that Gurmail Singh intended to cause an injury and the injury intended to be inflicted was proved to 216 be sufficient in the ordinary course of nature to cause death.
This argument is often raised for consideration by this Court and more often reliance is placed on Virsa Singh vs State of Punjab; , We would have gone into the question in detail but in Jagrup Singh vs State of Haryana ; , Sen. J. after examining all the previous decisions on the subject, observed that in order to bring the case within Para 3 of Section 300, I.P.C., it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death.
This view was further affirmed in a decision rendered in Randhir Singh vs State of Punjab, We are of the opinion that in the facts found by the High Court it could not be said that accused 1 Gurmail singh intended to cause that particular bodily injury which in fact was found to have been caused.
May be, the injury inflicted may have been found to be a sufficient in the ordinary course of nature to cause death.
What ought to be found is that the injury found to be present was the injury that was intended to be inflicted.
It is difficult to say that with confidence in the present case keeping in view the facts found by the High Court that accused 1 Gurmail Singh intended to cause the very injury which was found to be fatal." Therefore this decision also affirms the view taken in Virsa Singh 's case.
Then came the decision in Jagtar Singh 's case rendered by a Bench consisting of D.A.Desai and Amarendra Nath Sen, JJ.
In that case a single knife blow was inflicted in the chest and it was found to be sufficient in the ordinary course of nature to cause death.
The Bench held that clause Thirdly was not attracted in view of circumstances i.e. there the accused was a young man and inflicted the injury on the spur of the moment and some extent on deceased 's provocation in a sudden chance quarrel and on a trivial issue.
The Bench observed that: "The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow.
He could not be imputed with the intention to cause death or the intention to cause that particular injury which proved fatal.
" In this case, there is no reference to Virsa Singh 's case but there is a 217 references to Jagrup Singh 's case which decision, as noted already, has followed the ratio in Virsa singh 's case.
Then came the decision in Tholan 's case on which the counsel has heavily relied upon.
In that case also the appellant inflicted only a single knife blow on the chest of the deceased sufficient to cause death but it was on the spur of the moment.
The Division Bench, consisting of D.A. Desai and R.B.Misra, JJ.
took into the consideration that the deceased had nothing to do with the chit organised by one K.G. Rajan in respect of which there was a quarrel between the appellant and the organisers of the chit and when the accused was abusing the organisers, the deceased seemed to have told the accused not to misbehave in the presence of the ladies and not to use vulgar and filthy language.
The presence of the deceased was wholly accidental and the appellant on the spur of the moment inflicted the fatal injury on the chest.
The Division Bench relying on the earlier decision under similar circumstances convicted the accused under Section 304 Part II.
A reference is also made to the decision in Jagrup Singh 's case.
Therefore in this case also, the ratio laid down in Virsa Singh 's case is presumably followed.
In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death.
The supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc.
as mentioned above only to assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result.
It is held in all these cases there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e only had knowledge of the consequences.
These circumstances under which the appellant happened to inflict the injury it is felt or atleast a doubt arose that all his mental faculties could not have been roused as to form an intention to achieve the particular result.
We may point out that we are not concerned with the intention to cause death in which case it will be a murder simpliciter unless exception is attracted.
We are concerned under clause Thirdly with the intention be cause that particular injury which is subjective inquiry and when and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, clause Tirdly is attracted and it would be murder, unless one of the exceptions to Section 300 is attracted.
If on the otherhand this ingredient of `intention ' is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that Clause Thirdly is not 218 attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable under Section 304 Part II I.P.C. Bearing these principles in mind, if we examine the facts in the present case, clause Thirdly of Section 300 I.P.C. is fully attracted.
The appellant was having illicit relation with Agya Devi, wife of the deceased and his visits to her house were resented and objected.
On the day of occurence, the accused visited the house when the deceased was not there and he went there armed with a kirpan.
When the deceased came and objected to his presence there was only an altercation and exchange of hot words, and not a fight.
Thereupon he took out a knife and stabbed on the chest of the deceased resulting instantaneous death of the deceased.
The above circumstances would show that the accused intentionally inflicted that injury though it may not be pre mediated one.
All the above circumstances would certainly indicate such a state of mind namely he aimed and inflicted that injury with a deadly weapon.
As observed in Virsa Singh 's case in the absence of evidence or reasonable explanation show that the appellant did not intend to stab in the chest with a kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did.
When once the ingredient `intention ' is established then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death.
Therefore an offence of murder is made out.
Accordingly the appeal is dismissed.
Y.Lal Appeal dismissed.
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The appellant, had illicit connection with Agya Devi (P.W. 3), wife of the deceased and in that connection he used to visit her house quit frequently to which the deceased and his two brothers & mother living separately in the adjacent house used to object.
It may be pointed that the Agya Devi was related to the appellant 's wife.
On August 18, 1973, at about 11 p.m. when the deceased was not in house, the appellant came to visit Agya Devi.
A shortwhile later, the deceased also came home and he objected to the presence of the appellant whereupon an altercation and exchange of hot words ensued between the appellant and the deceased.
The appellant took out a kirpan (chhurra) from his waist and stabbed the deceased in the chest.
The deceased fell down crying that the appellant has killed him and the appellant fled away with the weapon.
the incident was witnessed by Agya Devi (P.W. 3) and P.W. 2, deceased 's brother from the roof of the house.
The deceased died as a result of the injury.
The prosecution was thereupon launched against the appellant and the prosecution examined and amongst others P.W. 2 and P.W. 3.
P.W. 3 turned hostile, with the result the prosecution was left with only P.W. 2 (brother of the deceased) as eye witness.
The trial court relied on the evidence of P.W. 2 and also held that his evidence was corroborated by the P.Ws. 1 and 5 and recorded the conviction under section 302, I.P.C. and sentenced him to imprisonment for life for causing the death of Champat Rai, the deceased, which order was later affirmed by the Delhi High Court.
Hence this appeal by the appellant, after obtaining special leave.
The main contention of the appellant is that even if the prosecution case is to be accepted, an offence of murder is not made out as the accused was entitled to the right of private defence; even otherwise the accused having inflicted only one injury which proved fatal, the offence would be one amounting to culpable homicide.
203 Dismissing the appeal, this Court, HELD: `Intention ' is different from ``motive ' or ignorance or ``negligence '.
It is the `knowledge ' or `intention ' with which that act is done that makes difference, in arrival at a conclusion whether the offence is culpable homicide or murder.
[208 E] The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the can can fall in that Clause.
The `intention ' and `knowledge ' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances.
The framers of the Code designedly used the words `intention ' and `knowledge ' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he , must have been aware that certain specified harmful consequences would or could follow.
But the knowledge is bare awareness and not the same thing as `intention ' that such consequences should ensue.
As compared to `knowledge ', `intention ' requires something more than the mere foresight of the consequences, namely the purposely doing of a thing to achieve a particular end.[211H 212C] `Knowledge ' as contrasted with `intention ' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive.
On the other hand, `intention ' is a conscious state in which mental faculties are aroused into actively and summoned into action for the purpose of achieving a conceived end.
[213B C] The circumstances would show that the accused intentionally inflicted that injury though it may not be pre mediated one.
All the circumstances would certainly indicate such a state of mind namely that he aimed and inflicted that injury with a deadly weapon.
In the absence of evidence or reasonable explanation to show that the appellant did not intend to stab in the chest with kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did.
When once the ingredient `intention ' is established then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death.
Therefore an offence of murder is made out.
[218D E] 204 Tholan vs State of Tamil Nadu, ; Jagrup Singh vs State of Haryana, ; ; Randhir Singh vs State of Punjab ; Kulwant Rai vs State of Punjab, ; Hari Ram vs State of Haryana, ; Jagtar Singh vs State of Punjab, ; Ram Sunder vs State of U.P., Crl.
Appeal No. 555/83 decided on 24.10.1983; Chahat Khan vs State of Haryana ; Chamru Budhwa vs State of Madhya Pradesh, AIR 1954 SC 652; Willie (William) Slaney vs State of Madhya Pradesh, ; ; Harjinder Singh alias Jinda vs Delhi admn.
; , ; Laxman Kalu Nikalji vs State of Maharashtra, ; ; Gurmail Singh and Ors.
vs State of Punjab, , referred to.
Virsa Singh vs State of Punjab, ; , followed.
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Civil Appeal No. 699 of 1985.
From the Judgment and Order dated 17.5.1984 of the Orissa High Court in O. J. C. No. 936 of 1979.
G.L. Sanghi, Adv., R.K. Mehta, Ms. Uma Jain, M.A. Firoz and P.N. Misra for the appearing parties.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
These three appeals are against the judgment of the Orissa High Court in O.J.C. No. 936 of 1979.
The Division Bench allowed the writ petition and quashed the gradation lists of sub Asstt.
Engineers (Electrical) and Sub Asstt Engineer (Mechanical), Annexures 5 & 6 before the High Court and the promotions given to the respondents Nos. 4 and 5 therein Annexure 7.
The Government and the Corporation were directed to consider the question of promotion treating the writ petitioner and the respondents as belonging to two cadres of Sub Asstt.
Engineer (Electrical) And (Mechanical).
These three appeals were filed, one by the Corporation, another by the State Government and the third one by the aggrieved employees.
344 The facts are simple.
Shri Bidura Charan Mohapatra, the 6th respondent/first appellant in the third appeal, a diploma holder in Mechanical and Electrical Engineering, was appointed as Mechanical Supervisor on August 24, 1962 in the pay scale of Rs.215 396.
Shri Parijat Ray, the 7th respondent/2nd appellant, equally possessed of diploma in Electrical and Mechanical Engineering, was appointed in the same scale of pay as a Mechanical Supervisor on November 5, 1962.
Shri P.K. Mohanty, the writ petitioner in the High Court and the respondent in these appeals holds diploma in Electrical Engineering and was appointed as Hand Driller in the pay scale of Rs. 100 155, on October 23, 1963 and Sub Assistant Engineer (Electrical) in the payscale of Rs. 185 325 on September 1, 1965.
The Lift Irrigation Corporation Ltd., a part of the Government Organisation, was carved out separately and the three persons alongwith others were drawn on deputation from the Government service to the Corporation in the year 1963.
Three categories of services were existing in the Corporation, namely, Mechanical, Electrical and Mechanical Electrical Composite unit.
In the year 1971, three tentative gradation lists were prepared for classification purpose of those three divisions as Sub Assistant Engineer (Mechanical), Sub Assistant Engineer (Electrical), Supervisors, Electrical and Mechanical which includes Electrical Supervisors, Mechanical Supervisors, Drilling Supervisors and Foreman cum Instructors.
In 1977 the Corporation decided to reorganise its set up and to classify the employees into two categories, namely, Sub Assistant Engineer (Electrical), Sub Assistant Engineer (Mechanical) to attend to the respective works, namely, mechanical and electrical.
The Corporation invited objections to amalgamate Composite Electrical and Mechanical Engineering Diploma Holders, either in Electrical or Mechanical Wing.
Options were called for from the persons holding only the composite diploma, namely, Mechanical and Electrical Engineering Supervisors.
The respondent writ petitioner did not file any objection to the scheme.
On consideration of the objections filed by others, two gradation lists were prepared in the order of seniority from the respective dates of appointment to the posts and higher scale of pay held by respective persons and fitted them in the respective lists as per options.
As stated earlier the respondent questioned their gradation in the Electrical Wing in the High Court and the High Court quashed it and the appellants obtained leave of this Court under article 136.
The contention of the appellants is that the respondent has no right to be kept in a particular wing.
The Corporation, with a view to H create two categories, namely, Mechanical and Electrical sought to 345 amalgamate the third Composite Mechanical/Electrical Wing and sought for options from the persons holding the composite posts.
This was taken due to administrative exigency.
The Corporation has power to carve out by amalgamating three sections, into two divisions and to prepare the seniority lists from the respective date of their initial appointment, etc.
The High Court, therefore, was unjustified to quash the gradation lists.
It was contended for the respondent by Sri Misra, his learned counsel, that the persons from the three wings are only deputationists holding lien on Government posts.
The Corporation did not frame any scheme of its own to appoint its own employees, nor given options to all the deputationists for confirmation as its employees.
So long as the employees are continuing on deputation, they are entitled to have seniority in the respective wings.
The writ petitioner admittedly has been working on the Electrical Wing and was No. 2 in the order of seniority as Sub Assistant Engineer (Electrical).
His right to seniority, cannot be disturbed by taking Mechanical Supervisor into the Electrical Wing, offending his right to promotion enshrined under articles 14 and 16 of the Constitution.
The writ petitioner holds only Diploma in Electrical Engineering.
S/Shri Bidura Charan Mohapatra and Parijat Ray hold double diploma of Mechanical and Electrical Engineering.
It is settled law that the Government or the Corporation, due to administrative exigencies, is entitled to and has power to reorganise the existing cadres of amalgamate some or carve out separate cadres.
The pre existing three separate cadres, namely, Electrical, Mechanical and the composite cadre, namely, Electrical Mechanical were sought to be amalgamated into two cadres by absorbing the personnel working in the composite cadre, namely, Electrical Mechanical in either Electrical cadre or Mechanical cadre.
Options have been called for in that regard from all the persons working in the Electrical Mechanical cadre and the appellants exercised their options for absorption in Electrical cadre.
The employees working in the Electrical and Mechanical cadres were also aware of the same.
It was, therefore, open to the respondent to raise any objection to the policy at that stage.
But he failed to so.
The decision to amalgamate the existing cadres by reorganising into two cadres was a policy decision taken on administrative exigencies.
The policy decision is not open to judicial review unless it is mala fide, arbitrary or bereft of any descernable principle.
On account of the amalgamation and adjusting the composite Electrical Mechanical cadre in either of the Electrical or Mechanical cadre as per the options given, the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed.
When the persons in the 346 composite Electrical Mechanical cadre opted to the Electrical cadre, they are entitled to be considered for their fitment to the cadre as per the seniority from the date of their initial appointment vis a vis their scale of pay.
This was the procedure adopted by the Corporation in fixing the inter se seniority.
The procedure adopted is just, fair and reasonable and beneficial to all the employees without effecting their scales of pay or loosing the seniority from the date of initial appointment.
Undoubtedly, in this process the respondent/writ petitioner lost some place in seniority which is consequential to amalgamation.
He has not been deprived of his right to be considered for promotion, only his chances of promotion have been receded.
It was not the case of the respondent that the action was actuated by mala fide or colourable exercise of power.
There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with the relevant rules.
From this perspective in our view the conclusion of the High Court that the gradation list prepared by the Corporation is in violation of the right of the respondent/ writ petitioner to equality enshrined under article 14 read with article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.
The appeals are accordingly allowed and the writ petition stands dismissed.
But in the circumstances, parties are directed to bear their respective costs.
N.P.V. Appeals allowed.
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The Lift Irrigation Corporation Ltd. had three categories of services, namely, Mechanical, Electrical and Composite unit of Mechanical Electrical when it was carved out of the Government organisation.
Subsequently, due to administrative exigency, the Corporation decided to reorganise its set up and classify the employees into two categories ' namely, Electrical and Mechanical by amalgamating the composite Electrical and Mechanical Engineering diploma holders either in Electrical or Mechanical wing, and invited objections to the scheme.
It also called for options from persons holding only the composite diploma, namely, Mechanical and Electrical Engineering Supervisors.
On consideration of options received, the Corporation prepared two gradation lists in the order of seniority from the respective dates of appointment to the posts and higher scale of pay held by respective Persons and fitted them in the respective lists as per options.
Respondent No. 1, a diploma holder in Electrical Engineering, who 342 was working as Sub Assistant Engineer (Electrical) in Government service, and had been drawn on deputation to the Corporation along with Respondents No. 6 and 7, appellants in third appeal, holders of double diploma in Mechanical and Electrical Engineering, and working as Mechanical Supervisors, along with others, had not filed any objection to the scheme, but questioned before the High Court the gradation of Respondents No. 6 and 7 and others in the Electrical Wing.
The High Court quashed the gradation lists and directed the Government and the Corporation to treat Respondent No. 1 and the other respondents as belonging to two cadres of Sub Assistant Engineer (Electrical) and (Mechanical) respectively.
The Corporation, the State Government and the aggrieved employees filed separate appeals, by special leave, contending that the Corporation had the power to amalgamate the three sections into two, due to administrative exigency and to prepare seniority lists from respective dates of employees ' initial appointment, etc.
Respondent No. 1 contended that his seniority as No. 2 in the Electrical Wing could not be disturbed by taking Mechanical Supervisors into the Electrical Wing offending his right to promotion enshrined under Articles 14 and 16 of the Constitution.
Allowing the appeals, this Court, HELD: 1. 1 The Government or the Corporation, due to administrative exigencies, is entitled to and has power to reorganise the existing cadres or amalgamate some or carve out separate cadres.
The decision to amalgamate the existing cadres by reorganising them into two cadres being a policy decision, taken on administrative exigencies, is not open to judicial review unless it is mala fide, arbitrary or bereft of any discernible principle.
[345E, G] 1.2 On account of amalgamation into two cadres by absorbing the personnel working in the composite cadre, namely, Electrical Mechanical in either Electrical or Mechanical cadre, and their adjustment, the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed.
When the persons in the composite Electrical Mechanical cadre opted to the Electrical cadre, they were entitled to be considered for their fitment in the cadre as per the seniority from the date of their initial appointment vis a vis their scale of pay.
This was the procedure adopted by the Corporation in fixing the 343 inter se seniority.
The procedure adopted is just, fair and reasonable and benificial to all the employees without affecting their scales of pay or losing the seniority from the date of initial appointment.
[345G H, 346A B] Undoubtedly, in this process, the first respondent lost some place in seniority which is consequential to amalgamation.
He has not been deprived of his right to be considered for promotion; only his chances of promotion have been receded.
1.3 There is no fundamental right to promotion.
An employee has only right to be considered when it arises, in accordance with the relevant rules.
[346C] 1.4 In the circumstances, the High Court was not right in holding that the gradation list prepared by the Corporation was in violation of Respondent No. 1 's right to equality enshrined in Article 14 read with Article 16 of the Constitution, and that he was unjustly denied of the same.
[346D]
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Civil Appeal No. 692 & 693 of 1981.
From the Judgment and Order dated 19.5.1980 of the Delhi High Court in W.P. Nos.
883 of 1978 and 1079 of 1979.
R.K. Habbu, R.B. Hathikhanwala and B.R. Aggarwala for the Appellants.
Soli J. Sorabjee, Attorney General (NP), Kapil Sibal, Additional Solicitor General, Ms. Indu Malhotra, P. Parmeshwaran and C.V.Subba Rao for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN J.
These two appeals involve a common question and can be disposed of by a common judgment.
The question is whether the appellant companies (hereinafter referred to as the 'assessees ') are entitled to full "draw back ' of the customs duty which they had paid on the import of di methyl terephthalate (shortly referred to as 'DMT ') for manufacture of polyester staple fibre yarn.
The assessees converted the DMT into polyester staple fibre in their factory at Thane and then sent it to Bhilwara in Rajasthan where the Rajasthan Spinning and Weaving Mills blended it with indigenous viscose staple fibre to spin out certain varieties of blended yarn.
It is common ground that the product manufactured by this process was exported by the assessees to Imperial Chemical Industries Pvt.
Ltd. Singapore, who had supplied the DMT free of charge to the assessees.
The answer to the question revolves around the interpretation of Section 75 of the read with the Customs and Central Excise Duty Draw Back Rules, 1971.
291 Section 75 of the empowers the Central Government, by notification in the official gazette, to direct, in respect of goods of any class or description manufactured in India and exported to any place outside India, that draw back should be allowed of the duties of customs chargeable under the Act on any imported materials of a class or description used in the manufacture of such goods, in accordance with and subject to the rules framed under sub section (2) of the said section.
Sub section 2, which confers a rule making power, enacts that such rules may, among other things, provide: "(a) for the payment of draw back equal to the amount of duty actually paid on the imported materials used in the manufacture of the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture of export goods of that class or description either by manufacturers generally or by any particular manufacturer;" There is a similar provision in section 37 of the Central Excises & Salt Act, 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture.
The Central Government framed the Customs and Central Excise Duties Drawback Rules, 1971 (hereinafter referred to as 'the rules '), in exercise of the powers conferred on it under these two statutes.
These are composite rules under the above two provisions and enable drawback being availed of in relation to customs duty as well as in relation to duties of central excise.
Some relevant provisions of these rules may be quoted here.
Rule 3, in so far as it is relevant for our present purposes, reads as follows: Rule 3: Drawback: (1) Subject to the provisions of (a) the (52 of 1962) and the rules made thereunder.
(b) the (1 of 1944) and the rules made thereunder, and (c) these rules, (a) drawback may be allowed on the export of goods specified in Schedule II at such amount, or at such rates, as 292 may be determined by the Central Government.
xxx xxx xxx (2) In determining the amount or rate of drawback under this rule, the Central Government shall have regard to: (a) the average quantity or value of each class or description of the materials from which a particular class of goods is ordinarily produced or manufactured in India.
(b) the average quantity or value of the imported materials or excisable materials used for production or manufacture in India of a particular class of goods.
(c) the average amount of duties paid on imported materials or excisable materials used in the manufacture of semis, components, and intermediate products which are used in the manufacture of goods.
(d) the average amount of duties paid on materials wasted in the process of manufacture and catalytic agents: Provided that if any such waste or catalytic agent is used in any process of manufacture or is sold, the average amount of duties on the waste or catalytic agent so used or sold shall also be deducted.
(e) the average amount of duties paid on imported materials or excisable materials used for containing or packing the exported goods.
(f) the average amount of duties of excise paid on the goods specified in Schedule 1: and (g) any other information which the Central Government may consider relevant or useful for the purpose.
Rule 4.
Revision of rates: The Central Government may revise the amounts or rates determined under rule 3.
xxx xxx xxx 6.
Cases where amount or rate of drawback has not been determined: 293 (1)(a) Where no amount or rate of drawback has been determined in respect of any goods, any manufacturer or exporter of such goods may, before exporting such goods, apply in writing to the Central Government for the determination of the amount or rate of drawback therefor stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of goods and the duties paid on such materials or components.
(b) On receipt of an application under clause (a) the Central Government shall after making or causing to be made such inquiry as it deems fit, determine the amount or rate of drawback in respect of such goods.
Cases where amount or rate of drawback determined is low (l) Where in respect of any such goods, the manufacturer or exporter finds that the amount or rate of drawback determined under rule 3 or, as the case may be, revised under rule 4 for that class of goods is less than three fourths of the duties paid on the materials or components used in the production or manufacture of the said goods, he may make an application in writing to the Central Govermment for fixation of the appropriate amount or rate of drawback stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of the goods and the duties paid on such materials or components.
(2) On receipt of the application referred to sub rule (1) the Central Government may, after making or causing to be made such inquiry as it deems fit, allow payment of drawback to such exporter at such amount or at such rate as may be determined to be appropriate if the amount or rate of drawback determined under rule 3 or, as the case may be, revised under rule 4, is in fact less than three fourth of such amount or rate determined under this sub rule.
Schedule II to the notification by which the rules were promulgated listed the items the export of which entitles an assessee to avail of the drawback facility.
Item 25 of the list reads thus: "Synthetic and regenerated fibre, textile yarn, thread, twines, cords and ropes 294 It is common ground that the goods exported by the assessees fall under item 25 above.
There is also no controversy that the DMT imported by the assessees was used for the manufacture of the above commodity and that, on the import of the DMT, the assessees have paid customs duty.
The rates of drawback available in respect of various goods were notified by the Central Government in due course.
Against serial no 25, the notification set out the rates of drawback as follows: Serial Sub Si.
Description of Rate of No. No. goods Drawback 25.
SYNTHETIC AND REGENERATED FIBRES AND/TEXTILE YARN/ THREAD, TWINES, CORDS AND ROPES Brand rate to be 2501 Synthetic and regenerated fixed on an fibre and textile yarn, application from thread, twines, cords and the individual ropes not elsewhere manufacturer specified.
exporter.
2502 (a) Yarn of above 21 BWS Counts or above 14 n.f. counts, spun wholly out of either viscose rayon fibre or acetate fibre or polyster fibre, polyamide fibre or acrylic fibre or wool, or from a combination of two and not more than two of the above mentioned fibres, or a combination of any one of the above mentioned fibres with either cotton or silk (but excluding yarn spun out of fibres obtained from fibre wastes, yarn waste or fabric wastes, by gernetting or by any other process: (a) Cellulosic fibre content: Rs. 1.80 (Rupees one and paise eighty only) per kg.
295 (b) Polyester fibre content: Rs.43.15 (Rupees forty three and paise fifteen only) per kg.
(c) Acrylic fibre content: Rs.37.75 (Rupees thirty seven and paise seventy five only) per kg.
(d) Polyamide fibre content: Rs. 16.40 (Rupees Sixteen and paise forty only) per kg.
(e) Wool contents: (i) in the worsted yarn of Rs. 18.95 (Rupees Weaving quality made wool Eighteen and paise top.
ninety five only) per kg.
(ii) in the worsted yarn of Rs. 13.55 (Rupees weaving quality not made from Thirteen and paise fifty wool top.
five only) per kg.
(iii) in the worsted Hosiery Rs. 16.65 (Rupees Sixteen yarn and worsted hand knitting and paise sixty five yarn made from wool top.
only) per kg.
(iv) in the worsted hosiery yarn Rs.11.25 (Rupees Eleven and worsted hand knitting yarn and Paise twenty five not made from wool top.
only) per kg.
(v) Bye content if the yarn is Rs.0.85 (Eighty five dyed paise only) per kg.
xxx xxx xxx It will be seen from the above table that the assessees are entitled to a drawback of Rs.43.15 per kg.
of the polyester fibre content of the yarn exported by them.
We are informed that this is the rate of central excise duty payable in respect of the manufacture of yarn having polyester fibre content.
For reasons to be stated presently, the assessees had to pay no central excise duty for the manufacture and hence there was admittedly no question of the assessee getting a drawback to this extent.
The point raised by the assessee is that, having paid customs duty on the DMT , it was entitled to a drawback in respect of the customs duty paid by it on the DMT.
Since this was not included in the notification of the Central Government, the assessees made an application to the Ministry of Finance on 23.3.1977 requesting that drawback of the entire customs duty may be sanctioned.
This request, 296 however, was rejected by the Central Government by a communication dated 12.3.1978.
This communication was in the following terms: "Under Rule 3 of the Customs and Central Excise Duties Drawback Rules 1971, all industry rates of drawback on polyester viscose blended yarn have been determined and announced under serial No. 2502 of the Drawback Schedule.
The said rates have been determined at the material time, after taking into consideration: (a) duty incidence of raw materials used in the manufacture of viscose fibre, plus the Central Excise duty on viscose fibre and (b) the Central Excise duty on polyester fibre in respect of polyester yarn.
However, no raw material duty for manufacture of polyester yarn was taken into account, as the same (DMT) is available indigenously and is exempted from Central Excise Duty.
For the rates determined effective from 18.8.1977 however the duty incidence on DMT has also been taken into consideration on the basis of weighted average of imported and indigenous material.
" The assessees, dissatisfied with this decision of the Central Government, preferred a writ petition in the Delhi High Court, which was dismissed by the High Court on 19.5.80.
Hence the present appeals.
At this stage, it may be necessary to outline some facts which may be relevant for appreciating the background in which the assessees ' counsel urged strongly the equitable, if not also legal, claims of the appellant for the drawback of the customs duty.
Counsel claims that the assessees were almost the first group of entrepreneurs in India to manufacture polyester fibre yarn.
They had been fortunate enough to obtain a contract from the Imperial Chemical Industries, Singapore.
By a letter dated 2.4.75 this concern agreed to supply free of cost the DMT required for the manufacture of blended yarn consisting of 67 per cent polyester and 33 per cent viscose fibre.
The DMT was to be converted in polyester fibre, blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka.
Thereupon, on 2.6.75, the assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose staple fibre.
Eventually, however, the viscose staple fibre was obtained indigenously and the import permit, to this extent, was not utilised by the assessee.
At the 297 time of obtaining this permit, the assessees also obtained permission to convert the imported DMT into polyester fibre under customs bond.
The condition attached to the Customs Clearance permit was in the following terms: "The firm will convert the imported DMT into polyester fibre under Customs bond.
The firm will then move the polyester fibre so manufactured and the imported viscose staple fibre under bond to the bonded warehouse of Rajasthan Spinning and Weaving Mills, Bhilwara Messrs. Rajasthan Spinning and Weaving Mills will then manufacture under bond polyester viscose yarn on behalf of the firm.
The polyester viscose fibre yarn will then be exported by the firm to the overseas buyers who have supplied the DMT and viscose staple fibre on CCP basis or their nominees. .
If these conditions had been fulfilled the assessees would have had no problems.
The polyester fibre would have been manufactured under customs bond and this would have obviated payment of customs duty by the assessees.
So also, the production of the blended yarn at the Rajasthan Spinning and Weaving Mills would have been under Central excise supervision and no excise duty would have been payable on the manufacture.
Unfortunately, however, the customs authorities were not in a position to permit the conversion of the DMT into polyester fibre under customs bond for reasons which are not at present relevant and which are not being challenged in these proceedings.
The assessees 's request for the manufacture of polyester fibre under: customs bond was declined by the customs authorities on 2.4.1976.
Perhaps anticipating this difficulty, the Association of Polyester Staple Fibre Manufacturers at Bombay made an application to the Central Government on 26.3.1976 praying for exemption from customs duty on DMT required for the manufacture of polyester staple fibre.
This letter points out: "Members of this Association manufacture polyester staple fibre.
One of our members has received an advance licence for the import of DMT, a photostat copy of which we attach herewith.
This DMT is to be used for manufacture in polyester fibre and the polyester fibre then converted into yarn to be supplied against export orders.
Our members wish to explore possibility of larger export business in this manner.
Indigenous supplies of both DMT and glycol are 298 insufficient to meet the domestic market requirements and export business can only be done by import of the two materials.
Fulfilling export orders by using advance licences as the one issued to our member poses certain problems because the licence stipulated manufacture under Customs Bond.
You will appreciate the difficulty in manufacturing under bond when the fibre for export constitutes only a portion of the total manufacture of the factory.
If DMT and glycol could be included in the schedule to the customs Notification GSR 183, the procedural difficulties in manufacturing under Bond will not apply.
Exports of yarn made from raw materials obtained against advance licences could earn considerable foreign exchange because of the value added during processing.
One of the assessees also made a similar request and, eventually, a notification was issued on 2nd August, 1976 under section 25 of the exempting DMT from customs duty.
The Government of India also wrote to one of the present appellants on 9.9.76 drawing attention to the said notification and stating that with the issue of this notification.
The assessees ' problem would appear to have been solved.
This, however, was not correct.
The notification exempted future imports of DMT from customs duty but the assessees, having imported the DMT earlier, had to clear the same after paying customs duty thereon.
Hence their request for a drawback of the customs duty already paid by them, the refusal of which has led to the present litigation.
On behalf of the appellants, it is contended that the contains provisions enabling thd Government either to exempt goods under section 25 from the levy of Customs duty at the time of import or failing this, to permit a drawback of customs duty paid in the event of the conditions set out in section 75 being fulfilled.
In the present case, an exemption under section 25 of the was in fact notified but unfortunately this happened only in August, 1976.
By this time, the assessees had already imported the DMT.
This they were obliged to do because of a time bound programme for export of the manufactured fibre to Sri Lanka.
Counsel states that, from the very outset, the assessees had proceeded on the footing that they would be obtaining exemption from customs and excise duty because, apart from getting some conversion charges from the ICI, their own margin of profit on the transaction was not substantial.
That is why even at the time of obtaining the customs clearance permit they had sought for permission to convert DMT into polyester under customs bond.
If that had been 299 done, there would have been no necessity to pay customs duty at all.
Unfortunately, because the department lacked facilities to supervise such an operation, the attempt of the assessees was only partially successful in that they were able to get only the production of the blended fibre done under Central Excise supervision.
The initial stage of conversion from DMT to polyester fibre could not be done under customs bond.
It is pointed out that the Government of India had exempted DMT from customs duty only on the basis of the representations made by the assessees and it is urged that the refusal to grant drawback of customs duty to assessees is wholly unjustified.
The object of section 75 of the , read with section 27 of the Central Excise Act, is obviously to provide that in cases where certain goods are imported for complete utilisation in the manufacture of goods which are exported, the importer should be able to obtain relief in respect of customs and excise duties.
In the present case there is no controversy that the D.M.T. imported by the assessee was utilised for the manufacture of polyester staple fibre and that the final product was fully exported to Sri Lanka.
The notification made under the rules framed for this purpose, however, provides only for a drawback in respect of the excise duty involved in the manufacture of polyester staple fibre but not the customs duty on the raw material actually imported.
Sri Habbu, learned counsel, contends that this notification, in fact, is contrary to the provision contained in rule 3 which obliges the Government, in determining the amount or rate of drawback, to have regard, among other things, to the amount of duties paid on imported or excisable material used in the manufacture of the exported goods.
He submits that, in so far as the rates prescribed by the Central Government do not take into account the element of import duty on DMT, the fixation is not in accordance with the rule.
According to him, therefore, this case 'falls under rule 6 which enables an assessee to apply to the Central Government to determine a drawback where none has been determined.
The Central Government, he submits, was in error in rejecting the assessees ' application as one falling under rule 7 and, therefore not maintainable both in law and equity.
Having heard the learned counsel for the assessees at some length, we are of opinion that the High Court was right in rejecting the assessees contentions.
We think that the assessees ' arguments are based on a basic misapprehension that, under the Acts and rules, a manufacturer is automatically entitled to a drawback of the entire customs and excise duties paid by him if the terms and conditions of 300 section 75 are fulfilled.
Though section 75 of the and section 37 of the Central Excises & Salt Act empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also, the rules as framed (rule 3 in particular) provides only for a refund of the "average amount of duty paid on materials" of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally, except to the extent prescribed under rule 7 (to be noticed presently).
The rules do not envisage a refund of an amount arithmetically equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer.
If that had been the statutory intendment, it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacture of goods which are exported, the assessee would be entitled to a drawback of the customs or excise duties paid by him for the import or on the manufacture.
On the other hand, section 75(2) requires the amount of drawback to be determined on a consideration of all the circumstances prevalent in a particular trade and the fact situation relevant in respect of each of various classes of goods imported and manufactured.
The need for providing an elaborate process of determination as envisaged in rule 3 is this.
There may be different manufacturers of a particular manufactured item.
Some of them may be using indigenous material and some may be importing some of the raw material.
Similarly, in the process of manufacture also, there may be difference between manufacturer and manufacturer.
That is why the drawback rules provide for a determination of the drawback after taking into account the "average" amount in respect of each of the various items specified in rule 3 in relation to each type of goods listed in Schedule II.
The notification issued also determines the composite drawback available in respect of both customs and excise duties to importers cum manufacturers in respect of various categories of goods.
In other words, the amount of drawback is not intended to be the amount of the duties that may have been paid by individual manufacturers; it is to be determined by considering the overall position prevalent in the country in respect of each of the categories of trade in the goods specified in Schedule II.
We think that, if this basic principle is understood, the decision of the Govermment would become intelligible and rational.
There is no controversy that, in this case, the goods exported fall under item 25.
Learned counsel sought to contend that the goods here fall under sub item 2501 but this is clearly untenable.
Sub item 2501 represents a residuary category which will not be attracted to the 301 goods here which clearly fall under sub item 2502.
The notification prescribes different amounts of drawback under this it@m depending on the composition of the yarn and the nature of its contents.
It specifies an amount of Rs.43.15 per Kg.
as the relief by way of drawback available against the goods with which we are concerned which fall under clause (b) of item 2502.
This much indeed, was conceded before the High Court.
Once we understand the principles on which and the scheme according to which the rates of drawback are to be and are determined as explained earlier, the plea of the appellants, that the amount of drawback determined is nothing more than the excise duty payable on manufacture of blended fibre with polyester fibre, content and that the notification has erred in overlooking the customs duty paid on imported DMT, is wholly untenable.
We say this for two reasons.
First, the rates prescribed constitute a composite rate of drawback fixed having regard to the liabilities under the as well as the Central Excises & Salt Act.
It would not be correct, in principle, to bifurcate the amount so fixed into its two constituents and to say, merely because the amount fixed is equal to one of the duties, that the other has not been taken into account.
In theory, the drawback determined could have taken into account both sets of duties in part only.
It cannot be said to be merely the customs duty drawback or central excise duty drawback.
Though it does appear that the various rates of drawback prescribed under item 2502 are equal to the rates of excise duty payable on the manufacture of the various items referred to therein, the nature of exemption granted is one of relief under both enactments.
It is immaterial whether this quantum of relief benefits the assessee in respect of one or other or both of the levies which he has to discharge.
The attempt to identify and correlate the rebate granted to the central excise duty paid does not therefore appear to be correct in principle.
But, this ground apart, we think there is force in the point made by the learned counsel for the Union of India and accepted by the High Court that at the time when these drawback rates were fixed, the Government of India took into account both the import duty as well as the excise duties which would be payable on the manufacture of the goods the export of which was intended to be encouraged.
After examining the condition in the trade, it was found that D.M.T. was easily available in India at that time and that, therefore, it would not be necessary to grant any relief in respect of drawback of customs duty on the imported material because that would only result in assessees 302 attempting unnecessarily to import a raw material which was available in the country itself.
In fact, this is the aspect on which the Delhi High Court has laid considerable emphasis.
Learned counsel for the appeallants contends that this is factually and that this is clearly shown by the very fact that Government of India itself, in August, 1976, decided to grant exemption in respect of customs duty for the import of D.M.T. He submits that if D.M.T. had been easily available indigenously at that time, the question of granting exemption under section 25 would not have appealed to the Government at all.
He, therefore, submits that, in fixing the rate of drawback the Central Government had proceeded on the footing that no import duty would be payable on the DMT and that it will be sufficient to grant relief in respect of Central excise duty alone.
We find that, on this aspect, the position is not so simple as submitted by the learned counsel for the appellants.
We have already extracted reply of the Government of India to the assessees ' representation which clearly mentions that DMT is available indigenously and that, therefore, no duty in manufacture of polyester yarn was taken into account.
This is a statement of fact and there is no material placed before us to contradict the same except for the cor respondence referred to earlier.
If one looks carefully at the corres pondence, one will find that it does not support the assessees 'case.
For one thing the memorandum submitted by the Association of March 1976 itself proceeds on the footing that DMT is available locally but not sufficient to meet the domestic market requirments.
This, clearly, is a reference to something which happened after the present appellants had imported their goods and started the manufacture.
Indeed, it is their claim that they were fore runners in this field.
Fol lowing up on the assessees ' attempt to obtain imports of DMT and exporting the goods manufactured, other polyester staple fibre manufacturers also proposed to explore the possibilities of such imports and exports and what the letter says would only appear to be that the indigenous supplies of DMT and Glycol may not be enough to meet the domestic market requirements if the business is so expanded.
By the time the notification fixing the rates was issued, import duty on DMt had been removed and, therefore, there was no purpose in granting a drawback of customs duty.
In these circumstances, the customs duty was rightly not taken into account in fixing the rate of drawback.
The letter of the Government dated 9.9.76 is only an answer to the assessees ' prayer that its problem may be solved by granting an exemption for DMT from customs duty and refers only to the position after the notification of exemption.
It is not reply to the assessees ' representation in respect of the past which was filed only much later in 1977.
The correspondence in the case is, therefore, of no 303 help to the assessees.
It may also be pointed out that the assessees appear to have imported DMT not because it was not locally available but only because it was able to get it free of cost from the ICI which was a benefit which other manufacturers, if any, could not have enjoyed.
We are, therefore, of opinion that High Court was right in concluding that the rate of drawback in respect of the goods in ques tion was fixed after taking into consideration the aspect of customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the Country itself.
It cannot,therefore, be said that this is a case where the fixation is contrary to the terms of rule 3 and that the assessees ' application for determination of a rate in his case should be taken as an application under rule 6.
Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufactured goods which does not seem to be the case here.
The assessees ' reliance on rule 6, therefore, fails.
It is true the fixation of rates of drawback on the average basis indicated in rule 3 could work hardship in individual cases.
Provi sion for this contingency is made in rule 7.
The assessees ' application was rightly treated as one made under this rule and they could, if at all seek relief only if their case fell within its terms.
This rule, unfortu nately does not provide for relief in every case where an individual manufacture has to pay customs and excise duty to a larger extent than that determined for his class of goods.
Relief is restricted only to cases when the margin of difference is substantial and to the extent specified in rule 7.
The High Court has discussed this point at length and demonstrated, by giving necessary figures, how the assessees ' case does not fulfill the term of the rule and this conclusion is not, in fact, challenged by the learned counsel for the appellants.
The Government was, therefore, right in rejecting the appellants ' request made under section 7 of the Drawback Rules.
For the reasons above mentioned, we agree with the High Court that the order of the Central Government rejecting the assessees 'application was well founded and cannot be interfered with.
Learned counsel for the appellants brings to our notice a manual published by the Directorate of Publication.
Ministry of Finance, Department of Revenue explaining the scope of the rules as well as two notifications issued by the Government on 9.6.1978 and 1.2.1982 respectively and submits that the present case falls within the terms of these notifica tions.
We are constrained to point out that these are notifications issued subsequent to the period of the controversy before us: also this 304 is material which was not placed before the authorities or the High Court.
We, therefore, find ourselves unable to permit the assessee to rely upon them at this late stage.
However, having regard to the circumstances and the subsequent policy in the above rules, we think it is a fit case in which the Central Government could consider whether, on equitable grounds, the assessee can be given relief in respect of the customs duty on DMT paid by it.
In this context, it is worthwhile noting that the assessee saved foreign exchange for the country by importing DMT free of cost.
The entire manufactured product has also been exported and earned foreign exchange.
The appellants also apparently gave impetus to other manufacturers for the export of blended fibre on large scale.
If only the appellants had imported the DMT a few months later, they would have been entitled to exemption from customs duty and would not have suffered the present handicap.
They also did obtain the permission of the Government to convert DMT into polyester fibre under customs bond but this could not be implemented for reasons beyond their control.
Having regard to all these circumstances, it would seem only just and fair that the assessees should not be denied a benefit of which all other persons have since availed of.
We, therefore, think that this is a fit case in which the Government should consider, in case the assessees make an application within two months from today, whether the assessees could be granted the relief prayed for, if only on equitable grounds, and pass appropriate orders on such applications.
With the above observations, these appeals are dismissed.
But in the circumstances, we make no order as to costs.
Y. Lal Appeals dismissed.
|
The appellants are manufacturers of Polyester fibre yarn.
They obtained a contract from the Imperial Chemical Industries, Singapore for the supply of the said yarn and the said concern had agreed to supply to the appellants free of cost the di methyl terephthalate (DMT) D required for the manufacture of Polyester staple fibre yarn.
The DMT was required to be converted into polyester fibre, blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka.
The appellant assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose stable fibre.
The appellants also obtained permission to convert the imported DMT into polyester fibre under customs bond.
The appellants imported the DMT and paid the customs duty in respect thereof Section 75 of the empowers the Central Government to allow the drawback of the duties of customs chargeable under the Act on any imported materials of a class or description in the manufacture of such goods in accordance with and subject to the rules under sub section (2).
There is an identical provision in section 37 of the Central Excises & Salt Act, 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture.
The Central Government framed the Customs and Central Excise Duties Drawback Rules 1971 enabling drawback being availed of in relation to customs as well as in relation to duties of central excise.
Schedule II to the notification listed the items the export of which entities an assessee to avail of the drawback facility.
DMT as such was not included in the notification in respect of which drawback could have been availed of by the assessees.
The assessee therefore made an application to the Ministry of Finance on 23.3.1977 requesting that since it had paid customs duty on DMT, it was entitled to its drawback, more 289 particularly when its request for the manufacture of the polyester fibre under customs bond had been declined by the customs authorities.
The application filed by the appellants was rejected bY the Central Government on 12.3.1978, though on a representation made by the Members of the Association of manufacturers of Polyester staple fabric a notification had been issued on 2.8.76 under Section 25 of the Customs Act B exempting DMT from Customs duty.
The appellant thereupon filed writ petition in the Delhi High Court which was dismissed by the High Court.
Hence these appeals.
Dismissing the appeals, but recommending to the Central Government to consider the case of the appellants on equitable grounds whether the relief could be granted to it, this Court, HELD: Though Section 75 of the and Section 37 of the Central Excises & Salt Act 1944 empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also, the rules as framed (rule 3 in particular) provide only for a refund of the 'average amount of duty paid on materials, of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally, except to the extent prescribed under rule 7.
[30OA B].
The rules do not envisage a refund of an amount arithmeticaly equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer.
If that had been the statutory intendment, it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacturers of goods which are exported, the assessee would be entitled to a draw back of the customs or excise duties paid by him for the import or on the manufacture.
[300C] There is no controversy that, in this case, the goods exported fall under item 25.
R was sought to be contended that the goods fall under sub item 2501, but this is clearly untenable.
Sub item 2501 represents a residuary category which will not be attracted to the goods which clearly fall under sub item 2502.
The notification prescribes different amounts of drawback under this item depending on the composition of the yarn and the nature of its contents.
It specifies an amount of Rs.43.15 per kg.
as the relief by way of drawback available against the goods with which we are concerned which fall under clause (b) of item 2502.
[30OH 301B] 290 The High Court was right in concluding that the rate of drawback in respect of the goods in question was fixed after taking into consideration the aspect of the customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the country itself.
It cannot therefore, be said that this is a case where the fixation is contrary to the terms of rule 3, and that the assessee 's application for determination of a rate in his case should be taken as an application under rule 6.
[303B) Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufacturer 's goods which does not seem to be the case here.
[303C]
|
ivil Appeal Nos.
160 63 of 1990.
From the Order dated 25.9.89 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/1883/85 C, E/2031/85 C, E/ 1468/88 C and E/ 1986/88 C (Order No. 543 546 of 1989 C).
M.L. Lahoty, Mrs. Meeta Sharma and P.S. Jha (NP) for the Appellant.
M. Chander Sekaran, Additional Solicitor General (N.P.).
M. Gouri Shanker Murthy, G. Venkatesh Rao and P. Parameshwaran for the Respondent.
The Judgment of the Court was delivered by 320 S.C. AGRAWAL, J.
These appeals raise for consideration the question as to whether egg trays and other similar products manufactured by the appellant can be regarded as 'Containers ' under the relevant entries in the Central Excise Tariff.
Till February 28, 1986 the excise tariff was contained in the First Schedule to the (hereinafter referred to as 'the old Tariff ') and with effect from March 1, 1986, the excise tariff is contained in the Schedule to the (hereinafter referred to as 'the new Tariff).
The relevant entry in the old Tariff was Item 17.
During the period March 1, 1982 to February, 1983, the said Item 17 read thus: "Paper and paper board, all sorts (including paste board, mill board, straw board, cardboard and corrugated board) and articles thereof specified below, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (1) Uncoated and coated printing and writing paper (other than poster paper) (2) Paper board and all other kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating, corrugation, creping and design printing), not elsewhere specified.
(a) All sorts of paper commonly known as Kraft paper, including paper and paper board of the type known as Kraft liner or corrugating medium, of a substance equal to or exceedings 65 gram per square metre in each case.
(b) Others.
(3) Carbon and other copying papers (including duplicator stencils) and transfer papers, whether or not cut to size and whether or not put up in boxes.
(4) Boxes, cartons, bags and other packing containers (including flattened or folded cartons, whether or not printed and whether in cartons), whether or not printed and whether in assembled or unassembled conditions." 321 Item 68 of the old Tariff was in the nature of residuary entry.
By notification No. 66/82 CE dated February 28, 1982, the Central Government, in exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, exempted articles of paper or paper board falling under sub item (4) of item 17 of the old Tariff from the whole of the duty of excise leviable thereon.
The said exemption was, however, not applicable to printed boxes and printed cartons (including flattened or folded printed boxes and flattened or folded printed cartons) whether in assembled or unassembled condition.
With effect from March 1, 1983, Item 17 was substituted and during the period March 1, 1983 to February 28, 1986, it read as under: c "Paper and Paper board, all sorts (including pasteboard, mill board, strawboard, cardboard and corrugated board), and articles thereof specified below, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (1) Paper board and all other kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating, corrugation, creping and design printing), not elsewhere specified.
(2) Carbon and other copying papers (including duplicator stencils) and transfer papers, whether or not put up in boxes.
(3) Boxes, cartons, bags and 'Other packing containers (including flattened or folded boxes and flattened or folded cartons), whether or not printed and whether in assembled or unassembled conditions.
" In the new Tariff, the relevant entry under Heading 48.18 in Chapter 48 is as follows: G "48.18 OTHER ARTICLES OF PAPER PULP, PAPER.
PAPERBOARD, CELLULOSE WADDING OR WEES OF CELLULOSE FIBRES: Cartons, boxes, containers and cases (including flattened or folded boxes and flattened or folded cartons), whether in assembled or unassembled condition: 322 4818.11 Intended for packing of match sticks 4818.12 Printed cartons, boxes, containers and cases, made wholly out of paper or paper board of heading No. or sub heading No. 48.04, 4805.11, 4806.19, 4807.91, 4807.92, 48.08 or 4811.10, as the case may be 4818.13 Other printed cartons, boxes and cases 4818.19 Other" 4818.20 Toilet tissues, handkerchiefs and cleansing tissues of paper 4818.90 Other." On products falling under sub Heading 4818.19, the excise duty was nill whereas on products falling under sub Heading 4818.90, the excise duty was payable at the rate of 12%.
M/s. G. Claridge & Company Ltd. the appellant herein manufactures (i) egg filler flats, (ii) egg cartons, (iii) tube light packing trays, (iv) duck egg trays and (v) apple trays.
It filed a classification list for the above goods effective from April 1, 1981 classifying the products under Item 68 of the old Tariff and it was paying duty at the prevailing rate under Item 68.
After the introduction of the revised Item 17 with effect from February 28, 1982/March 1, 1982, the said appellant filed a revised classification list effective from March 1, 1982 for the aforesaid five products seeking classification under Item 17(4) and claiming full exemption from central excise duty under notification dated February 28, 1982.
This classification list was approved by the Assistant Collector of Central Excise, Pune Division on March 11, 1982, but on re examination Department felt that the said products did not merit classification under Item 17(4) but under Item 68 of the old Tariff and a show cause notice dated May 4, 1984 was issued.
After considering the reply of the appellant to the said show cause notice, the Assistant Collector of Central Excise, Pune Division passed an order dated January 28, 1985 whereby he held that 'egg trays ' manufactured by the appellant were correctly classifiable under Item 68 of the old Tariff and not under Item 17(4) and the appellant was required to pay central excise duty at the appropriate rate leviable on all types of egg trays manufactured and cleared from its unit during the period of six months prior to the notice dated May 4, 1984.
The Assistant Collector was of the view that the articles manufactured by the appellant were articles manufactured directly from the pulp and were, therefore, classifiable as 'articles of pulp ' under Item 68.
The said order of the Assistant Collector was reversed in appeal by the Collector of Central Excise 323 (Appeals) by his order dated April 30, 1985 on the view that the products manufactured by the appellant were made out of waste paper and they were classifiable under Item 17(4) as 'articles of paper and paper board '.
Feeling aggrieved by the said order of the Collector (Appeals), the Department filed appeals Nos.
E/1883/85 C and E/2031/85 C before the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'the Appellate Tribunal ').
After the introduction of the new Tariff with effect from March 1, 1986, the appellants filed a classification list classifying their products as 'containers ' falling under sub heading 4818.19 of the new Tariff and since no duty was payable under the said sub heading, the appellants claimed exemption from payment of excise duty on their products.
The said classification list was approved provisionally but subsequently the Assistant Collector, Central Excise issued a show cause notice dated October 16, 1986 proposing to classify the goods under sub heading 4818.90 chargeable to duty @ 12% ad valorem.
After considering the reply to the said show cause notice, the Asstt.
Collector, Central Excise, by his orders dated April 15, 1987 and July 1, 1987 held that the products manufactured by the appellant were not 'containers ' but were 'articles of pulp ' falling under sub heading 4818.90.
The said orders were set aside by the Collector of Central Excise (Appeals) by his orders dated March 22, t988 and June 6, 1988.
The Collector (Appeals) held that the products manufactured by the appellant were 'packing containers ' and classifiable under sub heading orders of the Collector (Appeals), 4818.19.
Feeling aggrieved by the Department filed appeals before the Appellate Tribunal which were registered as Appeals Nos.
E/1468/88 C and E/1986/88 C.
All the above four appeals were disposed by the Appellate Tribunal by a common order whereby the said appeals were allowed.
The Appellate Tribunal held that the products manufactured by the appellant cannot come within the sub classification below containers and were not classifiable under sub heading 4818.19 but were classifiable under sub head ing 4818.90 of the new Tariff and similarly they were not classifiable under item 17(4) or 17(3) of the old Tariff.
The Appellate Tribunal was also of the view that the products manufactured by the appellant are articles of paper because starting raw materials is waste paper.
The Appellate Tribunal has held that the duty demanded by the Assistant Collector for six months prior to the issue of show cause notice dated May 4, 1984, i.e., from November 4, 1983 is legally sustainable and with regard to recovery of the duty for the earlier period from March 1, 1982 by invoking the proviso to Section 11 A(l) of the , the Appellate Tribunal remanded the matter to the Collector (Appeals) for considering the said question.
324 The question which arises for consideration in these appeals is whether the egg trays and other similar products manufactured by the appellants are 'containers ' falling under Item 17(4) of 17(3) of the old Tariff and sub heading 4818.19 of the new Tariff.
The learned counsel for the appellant has urged that the products manufactured by it are 'containers ' and in support of this submission the learned counsel has invited our attention to the meaning of the term 'container ' as contained in the Dictionaries and the Indian Standard Glossary of Terms relating to paper or paper board, packaging materials, Glossary of Packaging Terms (USA) and Glossary of Packaging Terms (Australia).
The submission of the learned counsel is that a 'container ' is a receptacle which holds, restrains or encloses the item to be stored or transported and that the egg tray and other similar products manufactured by the appellant are 'containers ' because they are receptacles for holding, storing and transporting the things kept in them.
It has been urged that a 'tray ' is a shallow lidless container and merely because an egg tray is described as a tray does not mean that it is not a 'container '.
It is contended that egg trays are so designed as to protect the eggs from breakage and that egg trays provide the best mode for storage and transport of eggs.
The learned counsel has submitted that the Appellate Tribunal was in error in proceeding on the basis that egg tray and other similar products manufactured by the appellant cannot be regarded as 'containers ' because when a single egg tray is reversed or turned upside down or tilted sideways vertically at 90% angle, the contents would fall down.
The submission of the learned counsel is that it is not required that a container should be closed from all sides and that a container can also be open.
The expression 'container ' has been thus defined in the dictionaries and Glossaries of Packaging Terms: "Container: One that contains; a receptacle or flexible covering for shipment of goods.
(Abstract from Webster 's New Collegiate Dictionary, 1975) "Container: that which contains that in which goods are enclosed for transport.
(Abstract from Chambers ' 20th Century Dictionary) "Containers Any receptacle which holds, restrains or 325 encloses any article or commodity or articles or commodities to be stored or transported.
(Abstract from Indian Standard Glossary of Terms: 1.8. 4261 1967) "Container.
(1) In general, any receptacle or enclosure used in packaging and shipping.
(2) Relatively large, reusable enclosures to be filled with smaller packages and discrete objects, to consolidate shipments and allow transport on railway flat cars, flatbed trailers, aircraft, in ships ' holds or as deckloads, etc.
(See CARGO TRANSPORTER; CONTAINERIZATION).
(3) Any receptacle for holding a product." [Abstract from Glossary of Packaging Terms (USA)] "Container.
A large box for intermodal transport, containing many smaller boxes of different shapes and sizes as well as individual articles.
[Abstract from Glossary of Packaging Terms (Australia)] The above definitions would show that the expression 'container ' is used in three different senses: in a broad sense, it means a receptacle which contains; in a narrower sense, it means a receptacle in which articles are covered or enclosed and transported; and in a more limited sense, it means enclosure used in shipping or railway for transport of goods.
If used in a broad sense, 'container ' would include a tray because it is a receptacle which contains articles and, therefore, an egg tray would be a 'container '.
But an egg tray would not be a 'container ' in a narrower sense because articles placed in it are not covered or enclosed and they cannot be transported as such.
It is,therefore, necessary to ascertain whether the expression 'container ' in Item 17 of the old Tariff and Heading 48.18 of the new Tariff has been used in the broad sense to include all receptacles or in a narrower sense to mean those receptacles in which the articles are covered or enclosed and transported.
For this purpose, the context in which the word 'container ' has been used in these entries has to be examined.
In Item 17 of the old Tariff, the word 'containers ' is preceded by the words 'boxes, cartons, bags and other packing ' and in Heading 48.18 of the new Tariff, the word 'containers ' is preceded by the words cartons, boxes ' and is followed by the words 'and cases '.
It is a well accepted canon of statutory construction that when two or more words which are susceptible of analogous meaning are coupled together they 326 are understood to be used in their cognate sense.
It is based on the principle that words take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general.
[See: Dr. Davendra M Surti vs State of Gujarat, ; at p. 240].
Considering the expression 'containers ' in the context in which it is used in the relevant tariff items, we are of the opinion that the said expression has to be construed to mean 'packing containers ' which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles.
Egg trays being receptacles which are not covered or enclosed cannot be used for transportation of articles and, therefore, they cannot be regarded as 'containers ' under the abovementioned entries in the Excise Tariff.
According to the New Encyclopaedia Britannica, the practice followed in the various countries for the packaging of eggs for transport is as follows: "Packaging.
For retail use in the United States, eggs are repackaged in dozen and half dozen paperboard cartons.
In some other countries they are packed with straw or excelsior in long wooden boxes.
In many parts of the world, they are marketed in baskets or boxes and the individual eggs are sold by weight.
Several European countries stamp each egg with a date and number to meet the import restrictions of other nations." [p. 444, Vol. 6, 1974 edition] The Glossary of Packaging Terms (USA) also shows that moulded pulp egg trays are put in a standard case which indicates that the egg trays containing the eggs are put in a case for the purpose of transport.
In other words, the case in which the egg trays are put are `containers ' and not the 'egg tray ' itself.
For the reasons aforesaid, we are of the opinion that the Appellate Tribunal was right in taking the view that the egg trays and other similar products manufactured by the appellant cannot be regarded as `containers ' under the relevant items of the Excise Tariff.
The appeals, therefore, fail and are accordingly dismissed.
There will be no orders as to costs.
R. P. Appeals dismissed.
|
The appellant was a manufacturer of egg trays and other similar items.
Before the introduction of (new Tariff) effective from 1.3.1986, Central Excise and Salt Act, 1944 (old Tariff) was applicable to the relevant products.
The appellant, classifying its product under Item 68 of the old Tariff, was paying duty accordingly.
By Notification dated February 28, 1982, issued under Rule 8(1) of the Central Excise Rules, 1944, the Central Government exempted articles of paper and paper board falling under Item 17(4) of the old Tariff.
The appellant filed a revised classification list for its products seeking classification under item 17(4).
The Asstt.
Collector, Central Excise held the products classifiable as 'articles of pulp ' under Item 68 of the old Tariff, and the appellant was required to pay excise duty accordingly.
On appeal, the Collector (Appeals) reversed the order of the Asstt.
Collector, and held that the products were made out of waste paper and were classifiable under Item 17(4) as 'articles of paper and paper board '.
The Revenue filed appeals before the Customs, Excise and Gold (Control) Appellate Tribunal.
On introduction of the new Tariff, the appellant classified the relevant products as 'containers ' under sub heading 4818.19 and claimed exemption.
The Asstt.
Collector held that the products were not 'containers ' but were 'articles of pulp ' falling under sub heading 4819.90 and accordingly chargeable to duty.
Setting aside the order in 318 appeal, the Collector held that the products were 'packing containers ' and classifiable under sub heading 4818.19.
The Revenue appealed before the Appellate Tribunal, which allowed all the appeals by a common judgment, but remanded the matter to the Collector (Appeals) with regard to the recovery for a certain period.
In the assessee 's appeal to this Court it was contended that the `egg trays ' manufactured by the appellant were 'containers ' under Item 17 and Heading 48.18 of the respective Tariffs; that merely because the egg tray was described as a tray does not mean that it was not a container; and that it was not required that a container should be closed from all sides.
On the question whether: egg trays and other similar products manufactured by the appellant are 'containers ' falling under Item No. 17(4) or 17(3) of the First Schedule to the and Heading 48.18 of the .
Dismissing the appeals, this Court, HELD: 1. 1 'Egg trays ' being receptacles which are not covered or enclosed cannot be used for transportation of articles and cannot be regarded as 'containers ' under Item 17 of the First Schedule to Central Excise and Salt Act, 1944 and Heading 48.18 of the Schedule to .
[326B] 1.2 Moulded pulp egg trays containing the eggs are put in a standard case for the purpose of transport.
The case in which the egg trays are put, are 'containers ' and not the 'egg trays ' itself.
[326E F] 1.3 The expression 'container ' is used in three different senses: in a broad sense, it means a receptacle which contains; in a narrower sense, it means a receptacle in which articles are covered or enclosed and transported; and in a more limited sense, it means enclosures used in shipping or railway for transport of goods.
If used in a broad sense, `container ' would include a tray because it is a receptacle which contains articles and, therefore, an egg tray would be a 'container '.
But an egg tray would not be a 'container ' in a narrower sense because articles placed in it are not covered or enclosed and they cannot be transported as such.
[325D F] 319 1.4 In item 17 of the First Schedule to the word 'containers ' is preceded by the words 'boxes, cartons, bags and other packing ' and in Heading 48.18 of the Schedule to , the word 'containers ' is preceded by the words 'cartons, boxes ' and is followed by the words 'and cases '.
Considering the expression 'containers ' in the context in which it is used in the relevant tariff items, the said expression has to be construed to mean 'packing containers ' which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles.
[325G, 326A B] Webster 's New Collegiate Dictionary, 1975 Chambers ' 20th Century Dictionary Indian Standard Glossary of Terms Glossary of Packaging Terms (USA) Glossary of Packaging Terms (Australia) New Encyclopedia Britannica, referred to. 2.
It is a well accepted canon of statutory construction that when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense.
It is based on the principle that words take as it were their colour from each other, that is, more general is restricted to a sense analogous to a less general.
[325G H, 326A) Dr. Devendra M. Surti vs State of Gujarat, ; , relied on.
|
n Nos.11757 & 11758 of 1984.
(Under Article 32 of the Constitution of India).
WITH Civil Appeal No. 1124 of 1985.
P.P. Rao, K. Jagan Mohan Rao and Raju Ramachandran for the Petitioners.
V.C. Mahajan, Ms. A Subhashini and R.B. Mishra for the Respondent.
The Judgment of the Court was delivered by KASLIWAL, J.
The above writ petitions and appeal are disposed of by one single order as identical question of law are involved in these cases.
In order to appreciate the controversy we would narrate the facts of the writ petitions.
Shri Des Raj Bhatnagar, Petitioner DES No. 1 and Shri Ved Pal Seth, Petitioner No.2 were employees of the 359 Central Government.
The petitioner No. 1 after serving in various capacities in the Department of food of the Central Government from 24.10.1941 to 31.8.1971 (29 years and 10 months) was permanently absorbed in Food Corporation of India as Assistant on 1st September, 1971 and retired from the Government service.
The petitioner No. 2 after serving the Government in various capacities for the period from 5.11.1947 to 8.2.1972 (20 years and 3 months) was permanently absorbed on 9.2.1972 in Food Corporation of India as Sr. Asstt.
Manager and retired from the Government service.
On absorption in the Food Corporation of India, the petitioners were required to exercise either of the following two options: (a) Receiving the pro rata monthly pension and death cum retirement gratuity as admissible under the rules; and (b) Receiving the pro rata gratuity and a lumpsum amount in lieu of pension worked out with reference to commutation table obtaining on the date from which the pension was to be admissible and under the option order.
The office of the Pay and Accounts Officer, Ministry of Food and Agriculture determined the original pension payable to the petitioners per mensem.
The petitioners were sanctioned original pensions in accordance with the provisions of the Central Civil Service (Pension) Rules, 1972.
In case of petitioner No. 1 the original pension was determined at Rs. 240 per mensem payable from 1st September, 1971.In case of petitioner No. 2 the original pension admissible was determined at Rs.287 per mensem payable from 9.2.1972.
The petitioner No. I received his pension @ Rs.240 per mensem for the period from 1.9.1971 to 29.10.1972.
Petitioner No. 2 received his pension @ Rs.287 per mensem for the period from 9.2.1972 to 16.8.1972.
Under the above Rules maximum of one third of the amount of admissible pension could be commuted.
However, in the case of Government officers including Industrial Management Pool Officers who were opting for permanent absorption in Public Sector Undertakings, an option was given to commute the full amount of their original pension.
The petitioner No. I and petitioner No. 2 commuted their original pensions for a lumpsum of Rs.35,568 and Rs.43,601 on 30.10.1972 and 17.8.1972 respectively.
360 The Third Central Pay Commission was required to make its recommendations in the matter of providing relief to Government pensioners.
The Pay Commission, in order to secure Government pensioners against the continuing erosion in the value of the rupees and to recommend appropriate measures for protecting the pension of Government servants from such erosion on account of the possible increase in the case of living in future and after having considered the matter, recommended that irrespective of the amount of pension drawn by them, pensioners should be given relief at the rate of 5% of their pension subject to a minimum of Rs.5 per mensem and a maximum of Rs.25 per mensem.
The relief at those rates were recommended to be given to the Government pensioners as and when there was a 16 point rise in the 12 months average of the All India Working Class Consumer Price Index ( 1960 100).
The relief for the first time, at these rates was to be paid when the 12th monthly average of this index reached 216.
The said recommendation made by the Pay Commission was duly accepted by the Central Government.
The Ministry of Finance Office Memorandum No. F. 22(8) EV(A)/75 dated 13.2.1976 inter alia, provided that where an officer on his retirement commutes a portion of his pension he is eligible for relief and ad hoc reliefs in pension on the full amount of original pension as admissible to him.
Under the said O.M. the term 'Pension ' includes for the purposes of ad hoc relief the commuted portion of pension, if any.
The case of the petitioners is that according to these Rules, an officer who has commuted any part of this pension and an officer who has not opted for any commutation both receive the full quantum of relief and ad hoc relief on full amount of original pension.
It has thus been contended that for the purposes of grant of the full benefit of relief or ad hoc relief the Rules do not make any distinction between an officer who has sought commutation of his original pension and one who has not sought any such commutation.
The petitioner and other Government servants who opted for commutation of their original pension in accordance with the Rules are being arbitrarily and without just and reasonable cause are deprived of the relief and ad hoc relief on commutation in pursuance of the Office Memorandum dated 13.2.1976.
Though, an officer who commutes one third of his pension gets relief and ad hoc relief on the basis of original amount of his pension but whereas an officer commutes whole of his original pension is deprived of the entire amount of the relief or ad hoc relief.
The petitioners have thus contended that aforesaid Office Memorandum dated 13.2.1976 is vitiated by an inherent discrimination and is violative of Articles 14 and 16 of the Constitution.
361 The petitioners have further submitted that they are entitled to the aforesaid reliefs granted to all other Government pensioners, and the amount of relief to which pensioners are entitled and has been denied to them under the impugned Office Memorandum dated 13.2.
1976 works out to Rs. 13,592 and Rs. 15,040 in case of petitioner No. 1 and petitioner No. 2 respectively upto 29.2.1984.
The Ministry of Finance in their Office Memorandum No. 2(8)/EV/82 dated 10.10.1983 has sanctioned the grant of relief and ad hoc reliefs to Government servants who retired prior to 10th September, 1979 @ 92.5% of their original pension subject to minimum of Rs.93 and maximum of Rs.463 with effect from 1st July, 1983.
This has been done by taking in view the decline in the purchasing power of the rupee and the original sanction being insufficient and meagre to sustain the pensioners.
Apart from the above the petitioners have submitted that they are also entitled to the benefit of Liberalised Pension Formula of 1979,which was introduced vide the Finance Ministry 's Office Memorandum No. F. 19(37)/EV/79 dated 25.5 1979, in respect of the approved pensionable service rendered by them in the Central Government as admissible to other pensioners who retired from Government service between 17.4.1950 to 31.3.1979.
The said Memorandum was made applicable only to those Government servants who retired from service on or after 31.3.1979.
However, this Court in D.S. Nakara & Others vs Union of India, ; held that all Central Government pensioners governed by the Central Civil Service (Pension) Rules, 1972 were entitled to pension w.e.f.
1.4.1979 as computed under the Liberalised Pension Formula irrespective of the date of their retirement.
Placing reliance on the above decision it has been claimed that there should be no discrimination between the applicability of the Liberalised Pension Formula to pre 31.3.1979 pensioners and there is no just and reasonable cause in denying such benefit to the petitioners under the impugned Office Memorandum No. F. 1(3)/EV/83 dated 22.10.1983.
Clause 5 of the Office Memorandum dated 22.10.1983 reads as under: "Central Government employees, who got themselves absorbed under Central Public sector undertaking/autonomous bodies prior to 1.4.1979 and have received/or opted to receive commuted raise for 1/3rd of pension as well as terminal benefit equal to the commuted value of the 362 balance amount of pension left after commuting 1/3rd, of pension, are not entitled to any benefit under these orders as they were not Central Government pensioners as on 1.4.79.
In cases where only a portion of pension has been commuted the pension will have to be enhanced in accordance with these orders with effect from 1.4.1979".
The above clause makes it clear that such Central Government employees, who got themselves absorbed under Central Public Sector Undertakings prior to 1.4.1979 and opted to receive commuted raise for 1/3rd of pension as well as terminal benefit equal to the commuted value of the balance amount of pension left after commuting 1/3rd of pension were not entitled to any benefit as they were not Central Government pensioners as on 1.4.1979.
An identical writ petition No. 1068/1987 under article 32 of the constitution was filed on behalf of the Welfare Association of absorbed Central Government Employees in Public Enterprises and this Court dismissed the said writ petition on April 12, 1990.
In the said writ petition benefit of Judgment of this Court in "Common Cause" a Registered Society & Ors.
vs Union of India, [ ; was claimed but the same was negatived by making a distinction that the Writ Petition "Common Cause" was on behalf of the Government servants who had commuted their pension partially and this Court for the reasons indicated in the judgment came to hold that on the expiry of 15 years from the date of commutation the entire pension revived.
The petitioners were persons who had, at the time of retirement from Government service and entering into public sector had taken the advantage of commuting the entire pension.
They certainly belong to a class different from those whose case was before this Court at the instance of the common cause in Writ Petition Nos.
1955 61 of 1983.
It was further held in the above case that the commutation does bring certain advantages to the committees and the class of Government officers whom the petitioner seeks to represent have derived such benefits. ' We find no reason to take a different view.
The commutation brings about certain advantages.
The commuting pensioner gets a lumpsum amount which ordinarily he would have received in the course of his spread over period subject to his continuing to live.
Thus, two advantages are certainly forthcoming out of commutation (1) availability of a lumpsum amount, and (2) the risk factor.
In the present case the petitioners had not only got 1/3rd of their pension commuted but exercised the option of getting the entire pension commuted and in lieu thereof got a lumpsum.
Such persons cannot fall in 363 the category of Central Government pensioners for the purposes of getting benefit of Liberalised Pension Rules which can be made applicable only to Central Government Pensioners.
It is no doubt correct that the family pension has been allowed in case of the persons like the petitioners but that does not make them entitled to get any benefit given to the pensioners on account of the liberalised Pension Rules taking note of the fallen value of the rupee.
It was contended by Mr. Rao on behalf of the petitioners that the petitioners are not claiming any pension but their contention is that the Liberalised Pension Rules which given benefit to those pensioners who had got their 1/3rd pension commuted should be granted to the petitioners by awarding lumpsum after increasing their pension and calculating such amount in proportion to the increased pension.
We find no force in this contention as the petitioners fall in a different class altogether and are not entitled to claim any benefit granted to Central Government pensioners.
After getting a lumpsum in lieu of entire pension, they do not fall in the class of Central Government pensioners and are not entitled to any benefit granted to Central Government pensioners.
The case of such Central Government pensioners who got their 1/3rd pension commuted also fall in a different class in as much as they get 2/3rd pension, and after 15 years of such commutation or having attained the age of 70 years whichever was later they become entitled to full pension.
Petitioners on the other hand were not entitled to any pension after having received the lumpsum amount in lieu of pension being commuted and having opted to receive such amount in lumpsum at the time of entering the service in Public, Sector Undertaking.
In the above mentioned civil appeal the legal question is identical except that the appellant in this case became a pensioner of the Central Government w.e.f.
1.4.1977 and the pension determined as payable to him was Rs.609 per month and the same was got commuted by the appellant for a lumpsum amount on and from 7.8.1978.
The appellant had exercised the option for absorption in Steel Authority of India Limited (SAIL) a Public Sector Enterprise.
The Writ Petition filed by him before the High Court of Delhi was dismissed on 25.8.1982.
The appellant then filed a S.L.P. against the said order.
This Court had granted special leave on 25.3.1985 and had given a direction to hear the appeal alongwith the writ petition Nos. 11757 & 11758 of 1984.
In the result we find no force in all these cases and the same are dismissed with no order as to costs.
R.P. Petitions and Appeal dismissed.
|
The petitioners, who were Central Government employees, on their absorption in a Central Public Sector Undertaking, retired from Central Government service on different dates prior to 31.3.1979, and commuted their original pension for a lump sum as permissible under the Civil Service (Pension) Rules, 1972.
The Central Government issued O.M. dated 13.2.1976, enabling an officer who commuted a portion of his pension to be eligible for relief and ad hoc reliefs on the full amount of his original pension, but persons who got themselves absorbed in Public Sector Undertakings were not eligible to the said benefits.
Taking note,of the erosion in the value of the rupee, the Government, by O.M. dated 25.5.1979, introduced the Liberalised Pension Formula, benefit of which, by this Court 's decision in D.S. Nakara 's case was extended to all Central Government pensioners irrespective of the dates of their retirement.
In order to implement the said decision, the Government issued O.M. dated 22.10.1983, but the benefit was not given to those persons who got them selves absorbed in Central Public Sector Undertakings and received/opted to receive commuted raise of 1/3rd of pension as well as 357 terminal benefits equal to the commuted value of the balance amount of pension left after such commutation.
The petitioners challenged the validity of the aforesaid O.Ms.
dated 13.2.1976 and 22.10.1983 and contended that for the purposes of grant of the full benefit of relief or ad hoc relief, the Rules do not make any distinction between an officer who has sought commutation of a portion of his original pension and one who has not sought any such commutation; and as the petitioners who opted for commutation of their original pension in accordance with the Rules were being arbitrarily and without just and reasonable cause deprived of the relief, the aforesaid Office Memoranda were vitiated by an inherent discrimination and were violative of Articles 14 and 16 of the Constitution.
The facts of the appeal were identical to those of the petitions except that the appellant came before this Court in appeal against the order of the High Court which dismissed his writ petition.
On the question: whether the petitioners/appellants fell in the category of Central Government pensioners for the purpose of entitlement to the benefit of the Liberalised Pension Formula or did they fall in a different class altogether and were not entitled to get any such benefit, Dismissing the writ petitions and the appeal, this Court, HELD: 1. Clause 5 of O.M. dated 22.10 1983 is clear that such Central Government employees who got themselves absorbed under Central Public Sector Undertakings prior to 1.4.1979 and opted to receive commuted raise for 1/3rd of pension as well as terminal benefit equal to the commuted value of the balance amount of pension were not entitled to any benefit as they were not Central Government Pensioners as on 1.4 1979.
[362B C] 2.Commutation brings about certain advantages.
The person who commutes his pension gets a lump sum which ordinarily he would have received in the course of his spread over period subject to his continuing to live The two advantages of the commutation are the availability of a lump sum and the risk factor.
The allowance of Family Pension to such person does not however make them entitled to get any benefit that is given to the pensioners on account of Liberalised Pension Rules taking note of the fallen value of the rupee.
[362F G, 363A B] 3.1 In the instant case, the petitioners had not only got 1/3rd of 358 their pension commuted but exercised the option of getting the entire pension commuted and in lieu thereof got a lump sum.
Such persons cannot fall in the category of Central Government pensioners for the purposes of getting benefit of the Liberalised Pension Rules which can be made applicable only to Central Government pensioners.
[362G H, 363A] 3.2 The petitioners fell in a different class altogether and were not entitled to claim any benefit granted to the Central Government Pensioners.
After getting a lump sum in lieu of entire pension, they did not fall in the class of Central Government pensioners and were not entitled to any benefit granted to such pensioners.
The case of the Central Government pensioners who got their 1/3rd pension commuted also fail in a different class inasmuch as they got 2/3rd pension, and after 15 years of such commutation or having attained the age of 70 years whichever was later, they became entitled to full pension.
[363C D] "Common Cause" a Registered Society & Ors.
vs Union of India, ; , distinguished.
D.S. Nakara & Ors.
vs Union of India, ; , referred to.
|
Appeal Nos. 936 (NT), 937, 2339 & 2340 of 1988.
From the Judgments and Orders dated 12.8.1987, 3.7.1986, and 22.8.1988 of the Sales Tax Tribunal, Punjab in Misc.
Reference No. 60 of 1986 87, First Appeal No. 379 of 1986 and in Appeal Nos. 46 and 47 of 1987 88.
B V.M.
Tarkunde, R.C. Misra and Ms. Meera Aggarwal for the Appellant.
H.S. Munjral and C.M. Nayar for the Respondent.
c The Judgment of the Court was delivered by AHMADI, J.
the assessee appellant M/s. Mukerian Papers Ltd., is a company engaged in the manufacture of paper at Mukerian in the State of Punjab and is a registered dealer under the Punjab General Sales Tax Act, 1948 ( 'The Act ' hereinafter).
The assessee despatched some part of the manufactured goods outside the State of Punjab for sale on consignment basis.
However, the assessee had not paid the taxes on the taxable raw material consumed in the manufacture of such goods.
A show cause notice was, therefore, issued by the Assessing Authority under section 10(6) of the Act for the assessee 's failure to pay the taxes along with the return as required by section 4B of the Act.
Interest on the tax amount which the assessee had failed to pay was also claimed under Section 11D of the Act.
The assessee disputed its liability to pay penalty and interest on the amount of tax withheld on the plea that there was no wilful or intentional default on the part of the assessee to pay the taxes due under section 4B of the Act as the assesee was under a bona fide belief that no tax was to be paid on the raw material purchased for the manufacture of paper which was ultimately sent outside the State on consignment basis.
This impression,based on the language of the statute, stood confirmed by the subsequent decisions of the Punjab & Haryana High Court in the case of Goodyear India Ltd., 53 STC 163 and Bata India Ltd., 54 STC 226 till those decisions were overruled by the Full Bench decision in Des Raj Pushpak Kumar 's case 58 STC 393.
The assessee further contended that it had acted on legal advice that it was not liable to pay any purchase tax and, therefore, in the absence of a clear intention to avoid the payment of tax, there could be no question of imposition of penalty and demand for interest.
On the other hand it was contended on behalf of the revenue that the two decisions on which the assessee 350 placed reliance were subsequent to the date on which the liability to pay the tax had arisen and hence the assessee could not take shelter under the said two decisions.
The submissions made on behalf of the assessee did not find favour with the Revenue.
The assessee thereupon sought a reference under section 22(1) of the Act but the Presiding Officer of the Tribunal by its order dated 12th August, 1987 rejected the application as he saw no point of law to make a reference to the High Court.
Civil Appeals Nos. 936 and 937 of 1988 arise out of the said order of ]2th August, 1987.
In the other two appals Nos. 2239 and 2240 of 1988 the appellants have come to this Court directly from the Tribunal 's order in appeal without going through the formality of seeking a reference under section 22(1) of the Act in view of the rejection of a similar request by the impugned order of 12th August, 1987.
This Court granted special leave to appeal without insisting on the appellant assessee approaching the High Court in view of the Full Bench decision of that Court in Des Raj 's case.
As the facts are identical and common questions of law arise we have thought it proper to dispose of all the four appeals by this common judgment.
Counsel for the assessee appellant contended that the main question of law involved in this case is concluded by the decision of this Court in M/s. Goodyear India Ltd. vs State of Haryana; , which was an appeal arising from the High Court 's decision in the case of the same assessee reported in (1983) 53 STC 163 to which reference is made hereinabove.
He further pointed out that while deciding the true scope of section 9 of the Haryana General Sales Tax Act, 1974, which, says counsel, is in pari materia with section 4B of our Act, this Court affirmed the High Court 's view expressed in Goodyear India Ltd., 53 STC 163 and Bata India Ltd., 54 STC 226 and disapproved the Full Bench view in Des Raj 's case 58 STC 393.
Counsel for the Revenue, however, placed strong reliance on this Court 's decision in State of Tamil Nadu vs M.K. Kandaswami etc.
, [19761 1 SCR 38 and submitted that the assessee 's case falls within the ratio of the said decision.
But counsel for the assessee pointed out that this Court had considered the ratio of Kandaswami 's case in the subsequent decision and had pointed out that in that case this Court was not concerned with the actual argument with which it was concerned in the subsequent case and, therefore, the decision in the former case is not an authority for the question of law involved in the subsequent case.
In order to appreciate the rival submissions it would, we think, be appropriate to examine the language of section 4B of the Act, which reads as under: "4B. Levy of Purchase tax on certain goods 351 Where a dealer who is liable to pay tax under this Act purchases any goods other than those specified in Schedule B from any source and (i) uses them within the State in the manufacture.
of goods specified in Schedule B, or B (ii) uses them within the State in the manufacture,of any goods, other than those specified in Schedule B,and sends the goods so manufactured outside the State in any manner other than by way of sale in the course of inter State trade or commerce or in the course of export out of the territory of India; or (iii) uses such goods for a purpose other than that of resale within the State or sale in the course of inter State trade or commerce or in the course of export out of the territory of India, or D (iv) sends them outside the State other than by way of sale in the course of inter State trade or commerce or in the course of export out of the territory of India, and no tax is payable on the purchase of such goods under any other provision of this Act, there shall be levied a tax on the purchase of such goods at such rate not exceeding the rate specified under sub section (1) of section 5 as the State Government may direct.
We may first read the plain language of the section bearing in mind the contextual setting and the objective of the law.
The section seeks to provide for the levy of purchase tax on certain goods specified in to levy a tax on the purchase of goods, other than those Schedule B, which are used in the manufacture of goods specified in Schedule B or in the manufacture of goods, other than those specified in Schedule B and sent outside the State in any manner other than by way of sale in the course of inter State trade or commerce or in the course of export out of Indian territory provided of course no tax is payable on the purchase of such goods under any provision of the Act.
Where a dealer purchases raw material other than the goods referred to in Schedule B and uses the said raw material within the State in the manufacture of goods specified in Schedule B, he becomes liable to purchase tax at the rate specified by the State Government not exceed 352 ing the maximum fixed under section 5(1) provided no tax is paid on such goods under any other provision of the Act.
However, when the raw material is used within the State in the manufacture of goods under than the one specified in Schedule B and the manufacturer 'sends ' the goods so manufactured outside the State in any manner (other than by way of sale in the course of inter State trade or commerce or in the course of export out of India) he becomes liable to pay purchase tax at the rate specified.
To attract this provision the revenue must show that (i) the manufacturer is a dealer liable to pay tax under the Act (ii) he has purchased goods other than those specified in Schedule B from any source (iii) he has used the said goods within the State in the manufacture of any goods other than those specified in Schedule B and (iv) he has sent the goods so manufactured outside the State in any manner other than the one excepted.
Before this provision can be invoked the above requirements must be strictly proved.
The first requirement identifies the tax payer, the second and the third requirements identify the goods liable to tax in the event the fourth requirement of the goods so manufactured being sent outside the State takes place.
Thus the liability to pay purchase tax does not accrue on the purchase of the raw material within the State or its use in the manufacture of goods other than those specified in Schedule B but falls on the dealer when the goods so manufactured are sent outside the State.
To avoid a duplication of the levy the charging clause provides that the purchase tax will be leviable under Section 4B provided it is not leviable on the said goods under any other provision of the Act.
Although the purchase tax is levied on the raw material purchased by the manufacturer, the actual levy is postponed till after the said raw material is consumed in the manufacture of another commercially distinct commodity having its own separate identity and character and is actually sent outside the State.
The relevant date is the date on which the goods are sent outside the State.
The taxable event takes place when the taxable goods are sent outside the State and not before that date notwithstanding the fact that the raw material was purchased and converted into a new commodity long before that date.
In the present case since it is not disputed that the demand of purchase tax is based on the fact that the goods manufactured within the State from raw material purchased earlier had been sent outside the State of sale on consignment basis, we are concerned only with clause (ii) of Section 4B whereunder the tax liability accrues on the date the goods are sent outside the State.
Under Section 4B of the Act the tax becomes exigible not on the purchase of the raw material or on the use thereof in the manufacture 353 of a new and distinct commodity but only after the goods so manufactured are despatched to a place outside the State.
Once the goods are sent outside the State the purchaser is made liable to pay the tax at the rate prescribed on the purchase of such goods provided no tax is payable on the purchase thereof under any other provision of the Act.
It is, therefore, obvious that the tax though described as purchase tax is in effect a tax on consignment since it becomes effective on the happening of an event which has nothing to do with the actual purchase.
Even if the raw material is used in the manufacture of any taxable goods, the purchaser does not become liable to pay tax on the raw material until the manufactured item is sent out of the State.
And between the manufacture of the goods out of the purchased raw material and their actual despatch outside the State there may be a long time gap.
There is, therefore.
no room for doubt that the liability of tax falls only after despatch of the manufactured goods outside the State and that event may have no relation to the actual purchase or manufacture.
That being so, the conclusion is inescapable that the tax though described as a purchase tax is actually a tax on the consignment of the manufactured goods.
Therefore, even though the language of section 4B of the Act is not identical with the relevant part of section 9( 1) of the Haryana Act, it is in substance similar in certain respects.particularly in respect of the point of time when the liability to pay tax arises.
Under that provision, as here, the liability to pay purchase tax on the raw material purchased in the State which was consumed in the manufacture of any other taxable goods arose only on the despatch Of the goods outside the State.
We are, therefore, of the opinion that the ratio of the said decision of this Court in Goodyear India Ltd. (supra) applies on all fours to the main question at issue in this case.
In the case of Goodyear India Ltd. (supra), this Court was concerned with the interpretation of section 9(1) and section 24(3) of the Haryana Act.
The facts revealed that the assessee company, which was engaged in the manufacture of automobile tyres and tubes at its factory at Ballabgarh in Haryana, had purchased raw materials from within and outside the State for the manufacture of the said products.
After manufacturing the same, the assessee company despatched some part of the manufactured products to its depots outside the State The revenue sought to recover purchase tax on the raw material purchased in the State and consumed in the manufacture of such goods under section 9(1) of the Haryana Act.
The action of the revenue was challenged in the High Court of Punjab & Haryana.
The High Court held that both on principle and on precedent, a mere despatch of goods to various depots of the assessee company outside the State did 354 not fall within the ambit of the phrase "disposes of the manufactured goods in any manner otherwise than by way of sale" employed in section 9(l)(a)(ii) of the Haryana Act.
The High Court also held that the decision of this Court in Kandaswami (supra) was not an authority for the proposition that a mere despatch of goods outside the State fell within the ambit of the said provision.
This Court while upholding the final order passed by the High Court came to the conclusion that as the tax levied was a tax on consignment of goods, the provisions imposing the said tax were beyond the competence of the State Legislature as the power to impose such tax vested in Parliament by virtue of clause (h) of Article 269(1) of the Constitution read with Entry 92B in Schedule 7.
List I, inserted by the 46th Amendment to the Constitution.
This Court also clarified that even before the amendments introduced by the 46th Amendment came into effect, Entry 54, in List 11 of the 7th Schedule read with Article 246(3) of the Constitution conferred power on the State Legislature to impose a tax on sale or purchase of goods and not on the mere consignment of goods, since consignment of goods simpliciter is neither a sale nor purchase or disposal of goods.
Holding that in substance the levy was sought on the consignment of goods, this Court held that it was not liable to tax since the State 's power to tax did not extend that far.
Counsel for the revenue placed reliance on an earlier decision of this Court reported in the case of Kandaswami (supra) which dealt with Section 7A of the Tamil Nadu Act which though not identical was similar to Section 9(1) of the Haryana Act.
The decision in Kandaswami though rendered in the context of an analogous provision was distinguished by this Court in Goodyear India Ltd. on the ground that it did not touch the core of the question at issue in the latter case.
This aspect of the matter is elaborately dealt with in paragraphs 31 to 34 at page 796 of the Report.
We need not dilate on this any more since the correctness of the judgment in Goodyear India Ltd, is not canvassed before us.
This Court, therefore, affirmed the High court 's view in Goodyear India Ltd., 53 STC 163 and Bata India Ltd, 54 STC 226 and disapproved of the Full Bench decision in the case of Des Raj 58 STC 393.
Once it is found that the revenue was not entitled to levy the tax which it purported to levy as purchase tax on the raw material, there can be no question of imposition of penalty or interest on the unpaid amount of tax.
Therefore, the action taken in exercise of power under section 10(6) and section 11D of the Act cannot be allowed to stand and must be set aside.
355 In the result these appeals succeed.
We allow all these appeals and set aside the decision of the Sales Tax Tribunal, Punjab, in each case.
Any recovery made under the impugned orders will be refunded within a period of three months from today.
Having regard to the facts and circumstances of the case, we make no order as to costs.
B G. N. Appeals allowed.
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The appellant, a registered dealer under the Punjab General Sales Tax Act, 1948 despatched some part of the manufactured goods outside the state, without paying the tax on the taxable raw material consumed in the manufacture of such goods.
The assessing authority issued a show cause notice for the assessee 's failure to pay the said tax.
Interest was also demanded on the tax amount.
The assesses disputed its liability to pay penalty and interest on the amount of tax withheld on the plea that there was no wilful default on its part, as it was under a bona fide belief that no tax was to be paid on the raw material used in the manufactured goods sent outside State.
The assesses further stated that it had acted on legal advice that it was not liable to pay any Purchase Tax and, therefore, in the absence of a clear intention to avoid the payment of tax, there could be no question of imposition of penalty and demand for interest.
The assessee 's submissions did not find favour with the Revenue, as also the Tribunal, and the assesses sought a reference to the High Court under section 22(1) of the Act.
But the Tribunal rejected application for reference.
Thereafter the assesses preferred appeals to this Court, against the Tribunal 's rejection of reference as also the Tribunal 's order in appeal.
On behalf of the appellants, it was contended that the main question involved in this case is concluded by several decisions of this Court, and it was not liable to pay the tax, as demanded by the Revenue.
On behalf of the Revenue it was contended that the assesses was liable to pay the tax on the raw materials used in the manufactured goods sent outside the State.
Allowing the appeals, this Court, 348 HELD: 1.1 Under Section 4B of the Punjab General Sales Tax Act, 1948 the tax becomes exigible not on the purchase of the raw material or on the use thereof in the manufacture of a new and distinct commodity but only after the goods so manufactured are despatched to a place outside the State.
Once the goods are sent outside the State the purchaser is made liable to pay the tax at the rate prescribed on the purchase of such goods provided no tax is payable on the purchase thereof under any other provision of the Act.
It is obvious that the tax though described as purchase tax is in effect a tax on consignment since it becomes effective on the happening of an event which has nothing to do with the actual purchase.
Even if the raw material is used in the manufacture of any taxable goods, the purchaser does not become liable to pay tax on the raw material until the manufactured item is sent out of the State.
And between the manufacture of the goods out of the purchased raw material and their actual despatch outside the State there may be a long time gap.
The liability of tax only after despatch of the manufactured goods outside the State and that event may have no relation to the actual purchase or manufacture.
That being so, the tax though described as a purchase tax is actually a tax on the consigmment of the manufactured goods, the levy of which is beyond the competence of the State as the power to impose such tax is vested in Parliament by virtue of clause (h) of Article 269(1) of the Constitution read with Entry 92B in Schedule 7, List 1.
[352H; 353A E; 354B] 1.2.
Even though the language of section 4B of the Act is not identical to section 9(1) of the Haryana Sales Tax Act, it is in substance similar in certain respects, particularly in respect of the point of time when the liability to pay tax arises.
Under that provision also the liability to pay purchase tax on the raw material purchased in the State which was consumed in the manufacture of any other taxable goods arose only on the despatch of the goods outside the State.
[353D E] M/s. Goodyear India Ltd. vs State of Haryana, ; ; applied.
State of Tamil Nadu vs M. K. Kandaswami etc., [ 19761 1 SCR 38; referred to.
Since the Revenue was not entitled to levy the tax which it purported to levy as purchase tax on the raw material, there can be no question of imposition of penalty or interest on the unpaid amount of tax.
Therefore, the action taken in exercise of power under section 10(6) and section 11D of the Act cannot be allowed to stand.
[354G H] 349
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TE JURISDICTION: Civil Appeal No. 837. 838 and 839 of 1991.
From the Judgment and Order dated 10.5 1990 of the Delhi High Court in Civil Writ Petition Nos. 1381, 2994 of 1989 and C.R. No. 954 of 1989.
Soli J. Sorabjee, Attorney General, Kapil Sibal, Additional Solicitor General, G.L. Sanghi, Dr. Y.S. Chitale, Harish N. Salve, H.K. Puri, Rajeev Sharma, Ravinder Nath, V.B. Saharya, P.K Jain, Krishna Moorthy Iyer, Prem Malhotra, A.C. Sehgal, Mrs. Urmila Sirur, R.L. Jain, S.K. Tredal, Ms. kitty Kumarmanglam, R.P. Dave, Mrs. Sushma Suri, Ms. M. Biswas and Ashok Mathur for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Leave granted.
These appeals from the decision of the Delhi High Court raise the question with regard to landlord 's right to evict the tenant under Section 14 B of the Delhi Rent Control Act, 1958 ( 'The Act ') and the corresponding right of the tenant to resist the eviction proceedings.
Section 14 B is a special provision made by the Legislature conferring certain rights to persons belonging to Armed Forces to recover from their tenants immediate possession of the premises for their occupation.
Mahendra Raj, the common petitioner in S.L.P. Nos.
7146 and 11425/90, is a tenant occupying the premises of the respondent Col. Ashok Puri.
The petitioner in SLP No. 7364 is also a tenant, but occupying the premises belonging to the respondent Brig.
V.N. Channa.
In the action for eviction brought by the respondents on the ground that they need the premises for their occupation, the tenants sought leave to contest the application.
But the Rent Controller was not satisfied with the facts disclosed by the tenants in their affidavits and therefore, denied leave to contest the application for eviction.
He considered the affidavits of the parties and accepted the case of the landlord and directed that the tenants shall be evicted.
In the case of Mahendra Raj, the Rent Controller made an order dated 2 September, 1989 inter alia, observing that the landlord is living in a rented house, that he is paying rent of Rs.2,000 p.m., and that he requires the premises for himself and the members of his family.
The eviction order was challenged by the tenant by means of revision petition before the Delhi High Court.
Almost simultaneously, the tenant also filed a writ 370 petition under Article 226 of the Constitution, challenging the validity of Section 14 B.
On 10 May 1990, the High Court dismissed the revision as well as the writ petition.
Against the judgment of the High Court dismissing the writ petition, the tenant has preferred SLP No. 7146 of 1990.
Against the order dismissing the revision petition, the tenant has preferred SLP No. 11425 of 1990.
The tenant in SLP No. 7364 of 1990 has also challenged the order of eviction in a revision petition before the High Court and we are told that the revision is still pending.
Like the other tenant, he has also questioned the validity of Section 14 B before the High Court under Article 226.
The High Court dismissed that petition following the decision in Mahendra Raj 's case.
It would be convenient to refer to the relevant provisions of the Act 'before dealing with the points raised in these cases.
The Act applies to premises which are defined by Section 2(i) as meaning, inter alia, any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any or other purpose.
Section 14 provides that notwithstanding anything to the contrary contained in any other law or contract, no decree or order for the recovery of possession of any premises shall be passed by any Court or Controller in favour of the landlord against a tenant.
This provision is, however, subject to the exceptions provided under several clauses of the proviso.
Section 14(l)(e) allows a decree for ejectment to be passed if the Court or Controller is satisfied that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, provided that the landlord is the owner of the premises and he has no other reasonably suitable residential accommodation.
The explanation thereunder states that for the purpose of the clause 14(1)(e) "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes.
Section 14(l)(e) is further restricted by sub sections (6) and (7) of Section 14.
Sub section (6) imposes a restriction on the landlord, who has acquired any premises by transfer, not to evict the tenant under Section 14(l)(e) within the period of five years from the date of acquisition.
Sub section (7) imposes an obligation on the Court where an order for eviction is made on the ground specified in Section 14(l)(e) to give the tenant the minimum period of six months for delivery of possession to the landlord.
371 By Act 18 of 1976 the Legislature has introduced certain changes in the Act with effect from 1 December, 1975.
Section 14 A was introduced in Chapter Ill providing certain rights to a person occupying residential premises allotted to him by the Central Government or any other local authority.
If he is required to vacate such residential accommodation on the ground that he owns in the Union Territory of Delhi, a house in his name or in the name of his spouse or dependent children, he could recover immediate possession of his premises let out by him notwithstanding anything contained elsewhere in the Act or any other law for the time being in force.
Simultaneously, Chapter III A was introduced containing Section 25 A to 25 C providing summary trial of the applications filed landlords classified under Section 14 A and also applications filed by any other landlord for bona fide requirement of their premises under Section 14(l)(e).
By the Amending Act 57 of 1988 some more classes of landlords were carved out from the class of general landlords.
Section 14 B to Section 14 D are the provisions.
The released or retired persons from armed forces or the dependents of the member of armed forces who had been killed in action are covered by Section 14 B. They could recover immediate possession of the premises let out by them if they are required for their own residence.
The retired employees of the Central Government and of the Delhi Administration are covered by Section 14 C.
They could recover immediate possession of the premises let out by them if they are needed for their own residence.
The landlords who are widows are covered by Section 14 D with similar right to recover immediate possession of the premises let out by them or by their husband.
These classified landlords are also given the benefit of the summary trial under Chapter III A, by introducing Sections 14 B to 14 D in sub section (1) of Section 25 B. The sub section (1) of Section 25 B as it stands provides that every application by a landlord for recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub section (1) of Section 14, or under Section 14 A or under Section 14 B or under Section 14 C or under Section 14 D shall be dealt with in accordance with the procedure specified in this Section.
There are however, no corresponding amendments to sub sections 2 to 5 of Section 25 B. Omission to make corresponding amendments particularly, to sub sections 4 & 5 of Section 25 B has given rise to the arguments for the petitioners that the tenant 's right to contest the application for eviction on the grounds specified in Section 14(1)(e) cannot be denied even as against the classified landlords falling under Sections 14 B to 14 D.
It 372 was also argued that the classified landlords may prove the facts stated in their respective provisions, but the tenant is entitled to contest the application by disclosing such facts as would disentitle the landlords from obtaining an order of eviction on the grounds specified under Section 14(l)(e).
The acceptance of the submissions urged for petitioners would practically obliterate the purpose and object of classification of landlords under Sections 14 B to 14 D who are carved out from the general landlords.
Indeed, it would render the whole exercise of creating special classes of landlords with specified rights to recover immediate possession of the premises let out by them nugatory.
Before the introduction of Sections 14 B to 14 D, Section 14(l)(e) was the only remedy available to all landlords except those covered under Section 14 A to recover possession of their premises.
The Controller shall give the tenant leave to contest the applications, if the tenant in his affidavit discloses such facts as would disentitle the landlords from obtaining an order for recovery of possession of the premises on the grounds specified under Section 14(l)(e).
It is but natural when the landlord brings an action for recovery of possession of the premises covered under Section 14(l)(e), the tenant has the legitimate right to show that the landlord does not qualify under or satisfy the requirements of Section 14(l)(e).
But today the remedy under Section 14(l)(e) is available only to landlords in general or the landlords who are not classified landlords under Sections 14 B to 14 D.
The classified landlords have been conferred with certain rights which are different from and independent of the rights under Section 14( 1)(e).
For a proper understanding, we may set out Section 14(l)(e), side by side with Section 14 B. Section 14 (1) (e) Section 14 B 14.
Protection of tenant 14.
B Right to recover against eviction.
immediate possession of premises to accrue to members of the armed forces etc.
(1) Notwithstanding anything (1) Where the landlord: to the contrary contained in any other law or contract, (a) is a released or retired no order or decree for person from any armed the recovery of possession forces and the premises let of any premises shall be out by him are required for made by any Court on his own residence; or 373 Controller in favour of the (b) is a dependent of a landlord against a tenant: member of any armed forces who had been killed in action and the premises let Provided that the Controller out by such member are may, on an application made required for the residence to him in the prescribed of the family of such manner make an order for the member, recovery of possession of the premises on one or more of the following grounds Such person or, as the case only, namely may be, the dependent may, within one year from the xxx xxx xxx date of his release or retirement from such armed (e) that the premises let forces or, as the case may for residential purposes are be, the date of death of required bona fide by the such member, or within a landlord for occupation as a period of one year from the residence for himself or for date of commencement of the any member of his family Delhi Rent Control dependent on him, if he is (Amendment) Act, 1988, the owner thereof, or for whichever is later, apply to any person for whose benefit the Controller for the premises are held and recovering the immediate that the landlord or such possession of such premises.
person has no other (2) Where the landlord is a reasonably suitable residen member of any of the armed tial accommodation : forces and has a period of less than one year preceding the date of his retirement and the premises let out by him are required for his own residence after his retirement, he may, at any Explanation: For the time, within a period of one purposes of this clause, year before the date of his 'premises let for retirement, apply to the residential purposes ' Controller for recovering include any premises which the immediate possession of having been let for use as a such premises.
residence are, without the consent of the landlord, (2) Where the landlord is a used incidentally for member of any of the armed commercial or other forces and has a period of purposes." less than one year preceding the date of his retirement and the premises let out by him are required for his own residence after his retirement, he may, at any time, within a period of one year before the date of his retirement, apply to the Controller for recovering the immediate possession of such premises.
(3) Where the landlord referred to in sub section (1) or sub section (2) has let out more than one premises, it shall be open to him to make an application under that sub section in respect of only one of the premises chosen by him.
Explanation: For the purposes of this Section `armed forces ' means an armed force of the Union constituted under an Act of Parliament and includes a member of the police force constituted under Section 3 of the (34 of 1978).
" 374 To make the picture complete we may also read sub sections 6 & 7 of Section 14.
"14(6) Where a landlord has acquired any premises transfer, no application for the recovery of possession of such premises shall lie under sub section (1) on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition.
14(7) Where an order for recovery of possession of any premises is made on the ground specified in clause (e) of the proviso to sub section (1) the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.
" Under Section 14(l)(e), the premises let out for residence could be recovered from the tenant, if the landlord requires the premises bona fide for his own occupation or for any member of his family dependent on him.
The eviction could also be sought for any person for whose benefit the premises are held.
The condition being apart from the requirement must be bona fide, there shall be no other reasonably suitable residential accommodation for the landlord or for whose benefit the premises are held.
The explanation to Section 14(1)(e) provides "premises let for residential purposes" include any premises which having been let for use as a residence are without the consent of the landlord, used incidentally for commercial or other purposes.
That means if with the consent of the landlord the premises let for residential purposes are used for commercial or other purposes, the landlord will have difficult task to evict such tenant.
Sub section (6) of Section 14 provides protection to the tenant from being evicted from the premises which are transferred to third parties.
The transferee landlord must wait for five years from the date of the transfer or acquisition before he moves the Court for eviction of the tenant already in occupation of the premises.
Sub section (7) is again a protection to the tenant requiring the Court or the Controller to give a minimum period of six months to vacate from the date of order of eviction.
This is a complete code governing the disposal of application filed under Section 14(1)(e).
Under Section 14 B the right to evict the tenant is available to two categories of persons, (i) The person who has let out the premises and, (ii) the dependent of a member of any armed forces who had let 375 out the premises but killed in action.
In the former case, the premises must be required for his own residence and in the latter, for the residence of the family of such member.
It may be noted that Section 14(l)(e) requires that the premises should have been let for residential purposes but the landlord who seeks eviction need not be the person who has let out.
But Section 14 B narrows down such right.
It is he who has let out alone could evict or the dependent of the person who has let out but since killed in action.
Secondly, Section 14 B uses the expression "the premises let out by him" unlike the expression used in Section 14(l)(e) "the premises let out for residential purposes".
The definition of "premises" under sub section (2)(i) means "any building or part of a building which is or intended to be let, separately for use as a residence or for commercial use or for any other purpose . ".
It is clear that Section 14 B does not require that the premises should have been let out for residential purposes and the purpose of letting out seems to be irrelevant.
But he who has let out alone could seek eviction of his tenant or the dependent of , member of any armed forces who had let out but since killed in action.
Section 14 B also provides the period of limitation for claiming possession of such premises, but no such limitation is provided under Section 14(l)(e).
Sub section (3) of Section 14 B imposes further restriction on the landlord who is having more than one premises.
Such a landlord cannot ask for possession of more than one of the premises but he can choose any one of the premises which he has let out.
Here again we find that there is no such restriction to a landlord covered under Section 14(l)(e) provided the requirement of the landlord is bona fide and he has no other reasonably suitable residential accommodation.
Section 14(l)(e) does not preclude the landlord from seeking eviction of more than one premises provided he establishes the need.
Similar are the provisions in allied Sections 14 C and 14 D.
It will be thus seen that Sections 14 B to 14 D are markedly different from Section 14(1)(e).
Notwithstanding these two independent provisions with specified rights to landlords in general and the classified landlords, Counsel for the tenants argued that Section 14(l)(e) is the weapon of defence for the tenant even against the applications under Sections 14 B or 14 C or 14 D.
The tenant is entitled to leave to contest the application by disclosing such facts in his affidavit which would disentitle the landlord from obtaining an order of eviction under Section 14(l)(e).
This contention is sought to be supported first, by the retention of sub section 376 (5) of Section 25 B without any amendment, second, absence of amendment to SeCtion 25(C)(2).
It was also contended that sub sections 4 & 5 of Section 25 B are a composite scheme and since that scheme has been left untouched the tenant 's right thereunder cannot be denied.
The submission if taken to logical conclusion leads to obvious anomaly which will be indicated presently.
But before we do that it will be necessary to deal with one other contention.
Sub section (1) of Section 25 B provides that every application for the recovery of possession of any premises belonging to persons referred to in sub section (1) of Section 25 B shall be dealt with in accordance with the procedure prescribed "in this Section" meaning thereby entire Section 25 B.
It was also the submission of Dr. Chitale counsel for one of the tenants in these cases.
Mr. Krishna Moorthy Iyer counsel for the Union of India, however, argued that the procedure contemplated under sub section (5) of Section 25 B need not be followed by the Controller with regard to applications filed under Sections 14 B to 14 D. According to counsel when the tenant is duly served of the application filed under Sections 14 B, 14 C or 14 D he has no right to contest the application unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller.
It is said that sub section (4) itself authorises the Controller to refuse leave if he is satisfied that the grounds set out in the affidavit of the tenant would not disentitle the landlord to seek eviction.
We do not think that this contention could be accepted.
Indeed, sub section (4) itself provides that the tenant has to obtain leave from the Controller, "as hereinafter provided", which in the context means as provided under sub section (5) the meaning and scope of which will be presently considered.
This is the only sub section under which the Controller could give leave to the tenant to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
The argument that the absence of amendments to sub sections 4 and 5 of Section 25 B preserves the tenant 's right to contest the application of even a classified landlord on the grounds specified under section 14(l)(e) would be basically faulty.
If such argument is available in respect of sub sections (4) and (5) of Section 25 B, it must be equally available to sub section (2) of Section 25 B. There is also no corresponding amendment to the summons to be issued under subsection (2) and the form specified in the Third Schedule after the introduction of Section 14 B to 14 D. Third Schedule is in these terms: 377 "The Third Schedule Form of Summons in a case where recovery of possession of Premises is Prayed for on the ground of bona fide requirement or under Section 14 A.
To (Name, description and place of residence of the tenant) Whereas Shri _________________________________has filed an application (a copy of which is annexed) for your eviction from (here insert the particulars of the premises) on the ground specified in clause (e) of the proviso to sub section (1) of Section 14, or under Section 14 A; You are hereby summoned to appear before the Controller within fifteen days of the service hereof and to obtain the leave of the Controller to contest the application for eviction on the ground aforesaid; in default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises.
Leave to appear and contest the application may be obtained or an application to the Controller supported by an affidavit as if referred to in sub section (5) of Section 25 B. Given under my hand and seal.
This_________________ day of_____________________ 19_______ Controller" This form specified in the Third Schedule refers only to applications filed under Section 14(l)(e) or under Section.14A.
Does it mean that the unamended form should be used to issue notice to the tenant even in case where application for eviction is not made under Section 14(l)(e) or 14 A? Is the tenant entitled to claim that he must receive the notice in the unamended form only, since there is no corresponding amendment to the form after introduction of Sections 14 B to 14 D? A wooden reading may furnish him positive answers, but it would be ridiculous.
When an application is filed under Section 14 B, a copy of the application should be sent to the tenant by making necessary amendment to the prescribed form and omitting the other 378 references which are not relevant.
If the application is filed under Section 14 B, the summons should state that the application is filed under Section 14 B and not under Section 14(l)(e) or 14 A. Likewise if the applications are under Sections 14 C to 14 D, the summons should state accordingly.
That would indicate the scope of the defence of the tenant for obtaining leave referred to in sub section (5) of Section 25 B.
Under sub section (5), the tenant could contest the application by obtaining leave with reference to the particular claim in the application of the landlord depending upon whether it is under Section 14 A, 14 B, 14 C or 14 D or under Section 14(l)(e).
The tenant can not be allowed to take up defence under Section 14(l)(e) as against an application under Section 14 B. There cannot be any defence unconnected with or unrelated to the claim or right of the plaintiff or applicant.
That would be against our jurisprudence.
It is unlikely that the Legislature intended the result for which the counsel for the tenant contended.
It will be a mechanical interpretation of the enactment defeating its purpose.
Such an interpretation has never found favour with the Courts which have always adopted a purposive approach to the interpretation of statutes.
Section 14 B and other allied provisions ought to receive a purposeful construction and subsection (5) of Section 25 B should be so construed as to implement the object and purpose of Section 14 B to 14 D.
It is the duty of the Court to give effect to the intention of the Legislature as expressed in Section 14 B to 14 D. True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meanings, it is permissible to supply the words" (Craies Statute Law, 7th Edition, p. 109).
Similar are the observations in Hameedia Hardware Stores vs B. Mohan Lal Sowcar, [ ; at 524 25 where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful.
An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute.
(See: Sirajul Haq Khan & Ors.
vs The Sunni Central Board of Waqf, [ at 1299).
The tenant of course is entitled to raise all relevant contentions as against the claim of the classified landlords.
The fact that there is no 379 reference to the word bona fide requirement in sections 14 B to 14 D does not absolve the landlord from proving that his requirement is bona fide or the tenant from showing that it is not bona fide.
In fact every claim for eviction of a tenant must be a bona fide one.
There is also enough indication in support of this construction from the title of Section 25(B) which states "special procedure for the disposal of applications for eviction on the ground of bona fide requirement.
It was next urged that sub section (6) of Section 14 is also attracted to applications under Section 14 B to 14 D.
This contention overlooks the express wordings of sub section (6).
It refers to premises acquired by transfer and thereby the transferee becoming the landlord.
Such a landlord cannot bring an action for eviction of tenant in possession of the acquired premises within a period of five years from the date of acquisition.
After five years such a landlord can ask for eviction of the tenant under section 14(i)(e).
This is indeed, as we said earlier, a protection to the tenant.
The original landlord who cannot evict the tenant since he has got many houses under his occupation cannot use the device by transferring one of the houses to a third party who could easily evict such a tenant.
The tenant in occupation of the transferred premises gets a protection from eviction for a minimum period of five years.
Section 14 B and other allied provisions refer to the premises let out and not acquired by transfer.
One may become an owner of the premises by transfer but the tenant in occupation of the transferred property cannot be evicted by resorting to sections 14 B to 14 D.
If the transferee wants to evict the tenant of such premises he must take action only under Section 14(l)(e).
Equally, sub section (7) of Section 14 has no application to eviction under Sections 14 B to 14 D. Nor the amended provisions under Section 25(c)(2) would be attracted since it applies exclusively to tenants of the landlords covered under Section 14 A.
But that does not mean that the tenants covered under Sections 14 B to 14 D are not entitled to any time for surrendering possession of the premises.
it is always left to the Controller who is a quasi judicial authority to exercise his discretion having regard to the facts and circumstances of each case.
The Controller must exercise his judicial discretion in every case of eviction and grant a reasonable time to the tenant.
There is one other aspect which requires elucidation.
In Busching Schmitz Private Limited vs P. T. Meighani and Anr., ; this Court while dealing with the scope of Section 14 A and the corresponding right of the tenant to resist the application thereunder, has inter alia, observed that sub section (5) of Section 25 B cannot be equated with Order 37 Rule 3 of the Code of Civil Procedure.
The 380 social setting demanding summary proceeding, the nature of the subject matter and, above all, the legislative diction which has been deliberately designed, differ in the two provisions.
The Controller 's power to give leave to contest the application filed under Section 14(l)(e) or Section 14 A is cribbed by the condition that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in the respective sections.
Needless to state, therefore if an application is filed under Section 14 B or 14 C or 14 D, the tenant 's right to contest the application is narrowed down and is restricted to the parameters of the respective sections.
He cannot widen the scope of his defence by relying upon Section 14(l)(e).
We find nothing contrary to our view in Precision Steel & Engineering Works and Anr.
vs Prem Deva Niranjan Deva Tayal, [ Subsection (5) of Section 25 is self contained and Order 37 Rule 3 CPC has no part to play there.
We, therefore, reiterate the views expressed in Basching Schmitz Private Limited case.
The tenant, who is petitioner in SLP No. 11425/90 has suffered an order of eviction which has been confirmed by the High Court in revision.
It is found that his landlord is living in a rented house and is paying a rent of Rs.2,000 p.m. and he requires the premises for himself and the members of his family.
We concur with the view taken by the Controller as affirmed by the High Court.
The landlord cannot be denied possession of his own premises under Section 14 B when he is residing in a rented premises.
Before parting with the case, we have to deal with one other contention which has been specifically raised by Mr. Sanghi.
The counsel argued that the concerned landlord has taken voluntary retirement long earlier and he has become a part of the society just like any other landlord and Section 14 B was not intended to confer such landlord, the special right to recover immediate possession of the premises.
Obvious answer to this contention is found in Section 14 B(1) which states that the persons who have already retired may within one year from the date of their release or retirement from such Armed Forces or, within a period of one year from the date of introduction of Section 14 B, whichever is later apply to the Controller for recovering the immediate possession of their premises.
That is the legislative wisdom.
In this view of the matter, the appeals stand disposed without an order as to costs.
D.R.L. Appeals disposed of.
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The Delhi Rent Control Act, 1958 was amended by Act 57 of 1988 which introduced Sections 14B to 14D to the Act carving out thereby classified landlords from the general class of landlords with specified rights to recover immediate possession of the premises let out by them if these are required for their own residence.
The released or retired persons from armed forces or the dependents of the member of armed forces killed in action are covered by Section 14B, the retired employees of the Central Government and of the Delhi Administration are covered by Section 14C, and the landlords who are widows are covered by Section 14D.
These classified landlords are also given the benefit of summary trial under Chapter IIIA by introducing Sections 14B to 14D in Sub section (1) of Section 25B, but there are no corresponding amendments to sub sections (2) to (5) of Section 25B.
The two petitioners, who are tenants, were in occupation of the premises belonging to two Army Officers (respondent landlords).
In the 365 action for eviction brought by the landlords on the ground that they needed the premises for their occupation, the tenants sought leave to contest the application which the Rent Controller being not satisfied with the facts disclosed by the tenants in their affidavits denied.
The Rent Controller accepted the case of the landlords and ordered eviction of the tenants.
The two tenants challenged the eviction orders by filing separate revision petitions in the High Court.
They also challenged the validity of Section 14B of the Act before the High Court by means of two separate writ petitions under Article 226 of the Constitution.
The High Court dismissed the writ petition and the revision petition filed by one of the tenants who being aggrieved moved this Court by way of special Leave Petition Nos.
7146 Court following its decision in the first case dismissed the writ petition filed by him, though the revision petition filed by him was still pending.
The tenant challenged the decision of the High Court by preferring Special Leave Petition No. 7364 of 1990 to this Court.
It was contended on behalf of the petitioners that the tenant 's right to contest the application for eviction on the grounds specified in Section 14(l)(e) cannot be denied even as against the classified landlords falling under Sections 14B to 14D.
The tenant is entitled to leave to contest the application by disclosing such facts in the affidavit as would disentitle the landlord from obtaining an order of eviction under Section 14(l)(e).
This is because of retention of sub section (5) of Section 25B without any amendment and absence of amendment to Section 25C(2).
It was also contended that sub sections (4) and (5) of Section 25B are a composite scheme and since that scheme has been left untouched the tenant 's right thereunder cannot be denied.
It was further contended that sub section (6) of Section 14 is attracted to applications under Sections 14B to 14D.
Dismissing the Petitions, the Court, HELD: 1.
Section 14B is a special provision made by the legislature conferring certain rights to persons belonging to Armed Forces to recover from their tenants immediate possession of the premises for their occupation.
[369E] 2.1 The Tenant cannot claim right to contest an application for eviction on the grounds specified in Section 14(l)(e) against the classified landlords falling under Sections 14B to 14D. Acceptance of such a claim would practically obliterate the purpose and object of classification of landlords under Sections 14B to 14D who are carved out from 366 the general landlords; indeed it would render the whole exercise of creating special classes of landlords with specified rights to recover immediate of the premises let out by them nugatory.
[371H 372C] 2.2 The remedy under Section 14(l)(e) is available only to landlords in general or the landlords who are not classified landlords under Sections 14B to 14D.
The classified landlords have been conferred with certain rights which are different from and independent of the rights under Section 14(l)(e).
[372E F] 2.3 Sections 14B to 14D are markedly different from Section 14(1)(e).[375E F] 3.1 The argument that the absence of amendments to sub sections (4) and (5) of Section 25B preserves the tenant 's right to contest the application of even a classified landlord on the grounds specified under Section 14(l)(e) is not sustainable.
Sub section (4) of Section 25B provides that the tenant has to obtain leave from the Controller "as hereinafter provided", which in the contest means as provided under sub section (5).
This is the only sub section under which the Controller could give leave to the tenant to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
[376G, F] 3.2 The form specified in the Third Schedule refers only to application filed under Section 14(l)(e) or Section 14A.
Therefore, when an application is filed under Section 14B, a copy of the application should be sent to the tenant by making necessary amendment to the prescribed form and omitting the other references which are not relevant and the summons should state that the application is filed under Section 14B and not under Section 14(l)(e) or 14A. Likewise if the applications are under Sections 14C to 14D, the summons should state accordingly.
That would indicate the scope of defence of the tenant for obtaining leave referred to in sub section (5) of Section 25B. [377G 378A] 3.3 Under sub section (5), the tenant could contest the application by obtaining leave with reference to the particular claim in the application of the landlord depending upon whether it is under Sections 14A, 14B, 14C or 14D or under Section 14(l)(e).
[378B] The tenant cannot be allowed to take up defence under Section 14(l)(e) as against an application under Section 14B. There cannot be 367 any defence unconnected with or unrelated to the claim or right of the plaintiff or applicant.
That would be against our jurisprudence and would be a mechanical interpretation of the enactment defeating its purpose.
The courts have always adopted a purposive approach to the interpretation of statutes.
[378C D] 3.4 Section 14B and other allied provisions ought to receive a purposeful construction and sub section (5) of Section 25B should be so construed as to implement the object and purpose of Sections 14B to 14D.
It is the duty of the Court to give effect to the intention of the legislature as expressed in Sections 148 to 14D. [378E] 4.
The tenant is entitled to raise all relevant contentions as against the claim of the classified landlords.
The fact that there is no reference to the word bona fide requirement in Sections 14B to 14D do not absolve the landlord from proving that the requirement is bona fide or the tenant from showing that it is not bona fide.
In fact every claim for eviction against a tenant must be a bona fide one.
There is also enough indication in support of this construction from the title of section 25B which states "special procedure for the disposal of applications for eviction on the ground of bonafide requirement".
[378H 379B] 5.
Section 14B and other allied provisions refer to the premises let out and not acquired by transfer.
One may become an owner of the premises by transfer but the tenant in occupation of the transferred property cannot be evicted by resorting to Sections 14B to 14D.
If the transferee wants to evict the tenant he must take action only under Section 14(l)(e).
Equally Sub section (7) of Section 14 has no application to eviction under Sections 14B to 14D, nor the amended provisions under Section 25C(2).
But that does not mean that the tenants covered under Sections 14B to 14D are not entitled to any time for surrendering possession of the premises.
It is always left to the Controller who is a quasi judicial authority to exercise his discretion having regard to the facts and circumstances of each case and grant a reasonable time to the tenant.
[379E G] 6.
The Controller 's power to give leave to contest the application filed under Section 14(l)(e) or Section 14A is cribbed by the condition that the 'affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified ' in the respective sections.
Therefore, if an application is filed under Section 14B or 14C or 14D, the tenant 's right to contest the application is narrowed down 368 and is restricted to the parameters of the respective Sections.
He cannot widen the scope of his defence by relying upon Section 14(l)(e).
Subsection (5) of Section 25B is self contained and Order 37 Rule 3 CPC has no part to play there.
[38OB C] Busching Schmitz Private Ltd. vs P.T. Menghani & Anr.,[1977] 2 SCC 835, affirmed and reiterated.
Precision Steel & Engineering Works and Anr.
vs Prem Deva Niranjan Deva Tayal, , harmonised.
The landlord in SLP No. 11425/90 is living in a rented house and is paying a rent of Rs.2,000 p.m. and requires the premises for himself and the members of his family.
The landlord cannot be denied possession of his own premises under section 14B when he is residing in a rented premises.
[38OD E] 8.
The contention that the concerned landlord has taken voluntary retirement long earlier and has become a part of the Society just like any other landlord and Section 14B was not intended to confer such landlord the special right to recover immediate possession of the premises is not maintainable because Section 14B(l) states that the persons who have already retired may within one year from the date of their release or retirement from such Armed Forces or, within a period of one year from the date of introduction of Section 14B, whichever is later, apply to the controller for recovering the immediate possession of their premises.
That is the legislative wisdom.
[38OF G] 9.
True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meanings, it is permissible to supply the words".
Having regard to the context in which a provision appears and, the object of the statute in which the said provision is enacted, the court should construe it in a harmonious way to make it meaningful.
An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute.
[378E G] Craies Statute Law, 7th Edition, P. 109; Hameedia Hardware Stores V. B. Mohan Lal Sowcar, ; at 524 25, and Sirajul Haq Khan & Ors.
vs The Sunni Central Board of Waqf, [1959].1 SCR 1287 at 1299, relied upon.
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Civil Appeal No. 710 of 1991.
From the Judgment and Order dated 8.5.1990 of the Delhi High Court in Civil Writ No. 3257 of 1989.
G.L. Sanghi, Harish N. Salve, H.K. Puri, Rajeev Sharma, Ravinder Nath, V.B. Saharya, P.K. Jain and Prem Malhotra for the Appellants.
Y.S. Chitale, T.S. Krishnamurthy Iyer, R.L. Jain, S.K. Tredal, Kitty Kumarmanglam, R.P. Dave and Ashok Mathur for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
SLP (C) No. 12 1 11 of 1990.
Leave granted.
This appeal raises the question of the validity and interpretation of Section 14 D of the Delhi Rent Control Act, 1958 (hereinafter referred to as the "Act").
In companion matters, we have already pronounced upon the validity and interpretation of Section 14 B of the Act.
Hence, it is not necessary to discuss in this judgment the points which are common to both sections.
These points will be deemed to have been concluded by the said decision.
The only point which remains to be dealt with and is peculiar to Section 14 D is whether to claim possession of such premises under the said Section, the landlady must become a widow after the premises are let out either by herself or her husband.
Section 14 D of the Act reads as follows: "14 D. Right to recover immediate possession of premises to accrue to a widow (1) Where the landlord is a widow and the premises let out by her (2) or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.
383 (2) Where the landlord referred to in sub section (1) has let out more than one premises, it shall be open to her to make an application under that sub section in respect of any one of the premises chosen by her.
The object of the Act, as stated in its preamble, is to provide for the control of rents and evictions, and of rates of hotels and lodging houses, and for the lease of vacant premises to Government, in certain areas in the Union Territory of Delhi.
The original Act came into force on February 9, 1959 having received the assent of the President on December 31, 1958.
The working of the Act disclosed certain deficiencies, inconveniences and hardships both to the landlords and the tenants.
Their associations, therefore, made representations.
Various committees and commissions also recommended amendments of certain provisions of the Act.
Considering the grievances of the landlords and the tenants as well as the recommendations of the committees/commissions, the Act was amended in 1988 with the object of (a) rationalising the law by bringing out the balance between the interests of landlords and tenants, (b) giving a boost to house building activity and maintaining the existing housing stock in a reasonable state of repairs, (c) reducing litigation between landlords and tenants and of ensuring expeditious disposal of disputes between them.
By this amendment Sections 14 B to 14 D were added.
The object of Section 14 D is obvious.
It is to assist a vulnerable and needy section of the Society to recover possession of the premises as expeditiously as Possible and without the usual trials and tribulations.
We have already held in the accompanying judgment that classified landlords such as the widow landlady under Section 14 D can apply for possession of the premises under the respective provisions even if the premises are not let for residence.
It is not necessary to repeat the said discussion in this judgment.
Section 14 D makes no distinction between the landladies who become widows before and after letting out of the premises.
It merely says that where the landlady is a widow and the premises are let out by her or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.
The language of the section in that respect is very clear.
The premises might have been let out by her as a widow or they might have been let out by her husband or even by herself before she had become widow.
The legislature wanted to give a special privilege to the landlady who is a widow notwithstanding whether the premises were let out before or after she became widow.
Such conferment of special benefit on a 384 widow landlady is permissible even under the provisions of Article 15(3) of the Constitution which is an express exception to the provisions of sub clauses (1) and (2) of that Article.
It states that nothing in the said Article shall prevent the State from making any special provision for women and children.
A widow is undoubtedly a vulnerable person in our society and requires special protection.
We further see no merit in the contention that if the benefit given by Section 14 D is allowed to be availed of by widows, they may make a business of it.
There is no warrant for such apprehension.
For, in the first instance, the right to recover possession under Section 14 D can be availed of by the widow only once.
That is a sufficient guarantee against the abuse of the privilege granted by the section.
Secondly, she has to prove her bona fide need for the occupation of the premises in question for her own residence like any other landlord.
Thirdly, the provisions of Section 19 of the Act come into play in her case also, when the order for possession on the ground of bona fide requirement for occupation as residence is made in her favour.
In this view of the matter, we find no substance in this appeal and the same is dismissed with no order as to costs.
Writ Petition No. 902 of 1990 7.
In the view that we have taken above, it is not necessary to admit this writ petition.
The authorities under the Act while disposing of the applications under Section 14 D will have to abide by this decision and not by the decision of the Delhi High Court in Civil Writ No. 2686 of 1989 in the matter of Dr. P.P. Kapur vs Union of India & Ors.
which was brought to our notice and stands overruled.
R.S.S. Appeal dismissed.
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This appeal has been filed against the judgment of the Delhi High Court whereby the High Court gave the widow landlady the benefit of section 14 D of the Delhi Rent Control Act, 1958 and accordingly granted her the Possession of the premises in question.
Before this Court it was inter alia contended on behalf of the appellant that the relief under section 14 D was available only to a landlady who had become a Widow after the premises were let out either by herself or her husband.
it was further contended that if the benefit given by section 14 D was allowed to be availed by all widows, they may make a business of it.
Dismissing the appeal, this Court, HELD: (1) The legislature w anted to give a special privilege to the landlady who is a widow notwithstanding whether the Premises were let out before or after she became widow.
Such conferment of special benefit on a widow landlady is permissible even under the provisions of Article 15(3) of the Constitution which is an express exception to the provisions of sub clauses (1) and (2) of that Article.
A widow is undoubtedly a vulnerable person in our society and requires special protection.
[383H 384B] (2) Section 14 D can be availed of by the widow only once.
That is a sufficient guarantee against the abuse of the privilege granted by the section.
Secondly, she has to prove her bona fide need for the occupation of the Premises in question for her own residence like any other landlord.
Thirdly, the provisions of section 19 of the Delhi Rent Control Act come to play in her case also, when the order for possession on the ground of bona fide requirement for occupation as residence is made in her favour.
[384C] 382 Dr. P. P. Kapur vs Union of India & Ors.
Delhi High Court, Civil Writ No. 2686 of 1989 overruled.
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tition No. 443 of 1988.
(Under Article 32 of the Constitution of India).
Rajiv K. Garg and N.D. Garg for the Petitioner.
Soli J. Sorabjee, Attorney General, M. Chandrasekharan and P. Parmeswaran for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
This is an application under Article 32 of the Constitution.
Northern Corporation is the petitioner in the instant application and the Union of India, the Collector of Customs and the Assistant Collector of Customs (Bond Department) are the respondents.
On 11th May, 1983, the licensing authority issued import licence No. 2959845 for Rs.20, 12,729 in favour of M/s Industrial Cable India Ltd., Rajpura.
The licence holder transferred the same in favour of M/s Metalic metal Indus tries.
The transferee licence holder issued a letter of authority in favour of the petitioner for the import of MSCR defective sheets or coils.
The letter of authority was issued on 21st May, 1984.
The petitioner herein placed order on M/s Sayani Enter prises Pvt.
Ltd., Singapore for the supply of MSCR defective sheets or coils on 30th May, 1984.
The foreign supplier shipped the material in three consignments and the goods arrived at the Bombay Port on 12th June, 1984.
The clearing agent of the petitioner filed bills of entry on 30th July, 1984 for warehousing under section 59 of the .
1962 (hereinafter referred to as 'the Act '), and the same was allowed.
The goods were bounded on 7th August, 1984.
It may be mentioned that the rate of duty on the day was 60% + 40% + Rs.650 per M.T. and 10% C.V.D.
The total duty on the consignment was assessed as Rs.26,20,109.55.
624 On 21th August, 1984, the petitioner 's clearing agent filed six bills of entry for ex bond clearance.
However, the bills of entry were returned with the remark that "please obtain no objection from the income tax".
This was endorsed on 24th August, 1984.
The petitioner states that thereafter he came to know that the income tax authorities had imposed ban under section 132(1) of the Income Tax Act, 1961.
The petitioner asserted that he was ever ready and willing, rather was anxious, to get the material on payment of the then prevailing customs duty.
However, due to circumstances beyond the control of the petitioner, that it to say, by the order of the Income Tax Authorities the goods could not be released.
This factor was not of the petitioner 's making, according to the petitioner. ' On 30th March, 1988, the Income Tax Department issued the necessary no objection certificate, thus lifting the ban.
On 4th April, 1988, the petitioner 's agent contacted the customs authority for clearance of the goods.
The duty as is prevalent now is Rs.5,000 per M.T. + addl.
duty 45% and C.V.D. at Rs.325 per M.T.
The total duty came to a very large sum of money.
The demand, according to the petitioner, was arbitrary, illegal and unconstitutional.
The instant writ was filed under Article 32 of the Constitution on 16th April, 1988 and on 22nd April, 1988, this Court passed the following order: "Pending notice, there will be limited stay to the extent that the goods name, "MSCR defective sheets/coils" which have arrived at Bombay Port per S.S. "SEA PRIMROSE" will be released forthwith on petitioner 's paying customs and other duties as leviable on 21.8.84.
In addition to the above payment the petitioner will deposit Rs.5 lakhs and for the balance amount petitioner will furnish surety (which may consist of ITC bond but excluding cash/bank guarantee/NSC/FDR) to the satisfaction of the Collector of Customs.
" We directed that the notice should be given to the revenue authority to appear before us.
Learned Attorney General had appeared pursuant to the notice on behalf of the respond ents.
It is contended on behalf of the respondents that for the payment of duty, the liability of the petitioner to pay the duty is the duty at the time of clearance of the goods.
Our attention was drawn to section 15(1)(b) of the Act which postulates that the rate of duty and tariff valuation, if any, applicable 625 to any imported goods, shall be the rate and valuation in force, in case the goods are cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse.
Section 15 of the Act reads as under: "section 15.
Date for determination of rate of duty and tariff valuation of imported goods.
(1) The rate of duty and tariff valuation, if any, applica ble to any imported goods, shall be the rate and valuation in force (a) in the case of goods entered for home con sumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actual ly removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been present ed before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.
(2) The provisions of this section shall not apply to bag gage and goods imported by post." Learned Attorney General laid emphasis on the expression "actually removed" in clause (b) of section 15(1) of the Act.
Our attention was also drawn to section 16 of the Act which reads as under: "section 16.
Date for determination of rate of duty and tariff valuation of export goods.
(1) The rate of duty and tariff valuation, if any, applica ble to any export goods, shall be the rate and valuation in force (a) in the case of goods entered for export under 626 section 50, on the date"on which the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; (b) in the case of any other goods, on the date of payment of duty.
(2) The provisions of this section shall not apply, to baggage and goods exported by post.
" It was contended on behalf of the revenue that in view of the aforesaid, it would not be possible for the petition er to clear the goods on payment of duty on the date when the petitioner was actualling expressed willingness to remove the goods.
Our attention was drawn to the decision of this Court in Prakash Cotton Mills (P) Ltd. vs B. Sen & Ors., [1979] 2 SCR 1142.
In that case,the appellant stored on December 22, 1965 in the Customs warehouse, goods import ed by him under a licence, and cleared them on various dates between September 1, 1966 and February 20, 1967.
Under protest, they paid customs duty at the enhanced rates in accordance with the amended provisions.
Later, they claimed rebate alleging that since the consignments had been re ceived, stored and assessed to duty much before the promul gation of the Ordinance, they were liable to pay duty at the rate prevailing on the date of warehousing.
Their appeals and revision were unsuccessful.
In appeal to this Court it was contended that the material change in section 15 being only the substitution of the words "the rate of duty" the customs authorities were not entitled to take into account the new rate of exchange at the appreciated value of currency in respect of the consignments stored in the warehouse prior to the coming into force of the Ordinance.
Dismissing the appeal, this Court held that the customs authorities were right intaking the view that the rate of duty applicable to the imported goods should be determined according to the law prevalent on the date they were actually removed from the warehouse.
Section 15(1)(b) clearly requires that the rate of duty, rate of exchange and tariff applicable to any imported goods shall be the rate and valuation in force on the date on which goods are actually removed from the ware house.
Under section 49 and importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance and he may be permitted to do so; and section 68 provides that an importer of any warehoused goods may clear them if the import duty leviable on them has been paid.
In that case, it was found that as the goods were removed from the warehouse after the amending Ordinance had come 627 into force, the customs authorities and the Central Govern ment were right in taking the view that the rate of duty applicable to the imported goods should be determined ac cording the law prevalent on the date these were actually removed from the warehouse.
Mr. Garg, appearing for the petitioner, on the other hand contended before us that his client was willing indeed to pay the duty when the goods crossed the customs barrier and were in the process of being cleared, but could not be cleared because of the prohibitory orders of the Income Tax Department under section 102 of the .
In that light, it was not possible, Mr. Garg contended, for the Income Tax Department to claim enhanced duty due to facts which were not for the fault of the petitioner.
In view of the language used in section 15(1)(b) of the Act, it is difficult to accept this contention specially in the light of the expression used 'actually removed '.
It must be ac cepted that the prohibitory orders, arbitrary or not, would postpone the date of clearance and as such would postpone the determination of the duty.
Therefore, it is difficult to accept Mr. Garg 's contention.
However, there is a far more serious objection in enter taining this application under Article 32 of the Constitu tion.
Article 32 of the Constitution guarantees the right to move the Supreme Court for enforcement of fundamental rights.
If there is breach of the fundamental rights, the petitioner can certainly have recourse to Article 32 of the Constitution provided other conditions are satisfied.
But we must, in all such cases, be circumventive of what is the right claimed.
In this case, the petitioner as such has no fundamental fight to clear the goods imported except in due process of law.
Now in the facts of this case, such clear ance can only be made on payment of duty as enjoined by the .
In a particular situation whether customs duty is payable at the rate prevalent on a particular date or not has to be determined under the four corners of the .
The petitioner has no fundamental right as such to clear any goods imported without payment of duties in accordance with the law.
There is procedure provided by law for determination of the payment of customs duty.
The reve nue has proceeded on that basis.
The petitioner contends that duty at a particular rate prevalent at a particular date was not payable.
The petitioner cannot seek to remove the goods without payment at that rate or without having the matter determined by the procedure envisaged and enjoined by the law for that determination.
The petitioner without seeking to take any relief within the procedure envisaged under the Act had moved this Court for breach of fundamental right.
This is not permissible and should never be 628 entertained.
In a matter of this nature where liability of a citizen to pay a particular duty depends on interpretation of law and determination of facts and the provision of a particular statute for which elaborate procedure is pre scribed, it cannot conceivably be contended that enforcing of those provisions of the Act would breach fundamental right which entitle a citizen to seek recourse to Article 32 of the Constitution.
We are, therefore, clearly of the opinion that relief under Article 32 of the Constitution is wholly inappropriate in the facts and the circumstances of this case.
It has further to be reiterated that for enforce ment of fundamental right which is dependent upon adjudica tion or determination of questions of law as well as ques tion of fact without taking any resort to the provisions of the Act, it is not permissible to move this Court on the theoretical basis that there is breach of the fundamental right.
Whenever a person complains and claims that there is a violation of law, it does not automatically involve breach of fundamental right for the enforcement of which alone Article 32 of the Constitution is attracted.
It appears that the facts of this nature require elaborate procedural inves tigation and this Court should not be moved and should not entertain on these averments of the Article 32 of the Con stitution.
This position is clearly well settled, but some times we are persuaded to accept that an allegation of breach of law is an action in breach of fundamental right.
In this connection, reference may be made to the decision of this Court in Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963] 1 SCR 778, where this Court observed at p. 842 of the report as under: "In my opinion, the correct answer to the two questions which have been referred to this larger Bench must be in the negative.
An order of assessment made by an authority under a taxing statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is ,passed ,on a misconstruction of a provision of the Act or of a notification issued thereunder.
Nor can the validity of such an order be questioned in a petition under article 32 of the Constitution.
The proper remedy for correcting an error in such an order is to pro ceed by way of appeal, or if the error is an error apparent on the face of the record, they by an application under article 226 of the Constitution.
It is necessary to observe here that article 32 of the Constitution does not give this Court an appellate jurisdiction Such.
as is given by articles 132 to 136.
Article 32 guarantees the right to a constitutional remedy and relates only to the enforcement of the rights conferred 629 by Part 111 of the Constitution.
Unless a question of the enforcement of a fundamental right arises, article 32 does not apply.
There can be no question of the enforcement of a fundamental fight if the order challenged is a valid and legal order, in spite of the allegation that it is errone ous.
I have, therefore, come to the conclusion that no question of the enforcement of a fundamental fight arises in this case and the writ petition is not maintainable.
" In the aforesaid view of the matter, we are clearly of the opinion that Article 32 of the Constitution should not have been resorted to and this application does not lie under Article 32 of the Constitution.
However, it appears that this Court has passed an order on 22nd April, as indicated hereinbefore.
It is stated that the goods have been cleared pursuant to that order.
The revenue would be at liberty to take appropriate action in accordance with law for the recovery of the dues.
This writ petition is accordingly disposed of.
N.P.V. Petition disposed of.
|
The petitioner Corporation imported certain goods.
The goods were bounded.
and could not be got released due to the ban imposed by the Income Tax authorities, under Section 132(1) of the Income Tax Act.
Subsequently after the ban was lifted, the petitioner approached the authorities for clearance of the goods, but the customs authorities demanded payment of customs duty at the enhanced rate which was prevailing at the time of clearance.
Hence the petition er filed a Writ Petition before this Court challenging the demand as arbitrary.
illegal and unconstitutional.
It was contended that though the petitioner was willing to clear the goods on payment of the then prevailing custom duty, the goods could not be cleared due to circumstances beyond its control, by the order of the Income Tax authori ties and, therefore, the authorities could not claim en hanced duty.
On behalf of the respondents it was contended that in view of Section 15(1)(b) of the , especially the expression "actually removed" used therein, the liability of the petitioner to pay the duty was the duty at the time of clearance of the goods.
Disposing of the Writ Petition, this Court, 622 HELD: 1.
Section 15(1)(b) of the clearly requires that the rate of duty, rate of exchange and tariff applicable to any imported goods shall be the rate and valuation in force on the date on which goods are actu ally removed from the warehouse.
Therefore, in view of the language used in Section 15(1)(b) of the Act, specially in the light of the expression 'actually removed ' the petition er was liable to pay excise duty at enhanced rate prevailing on the date the goods were cleared.
The prohibitory orders, arbitrary or not, would postpone the date of clearance, and as such would postpone the determination of the duty.
[626F; 627C] Prakash Cotton Mills (P) Ltd. vs B. Sen & Ors., [1979] 2 SCR 1142, relied on.
2.1 Recourse to article 32 of the Constitution can be had if there is a breach of the fundamental rights, provided the other conditions are satisfied.
BUt in a matter where li ability of a citizen to pay a particular duty depends on interpretation of law and determination of facts and the provision of a particular statute, for which elaborate procedure is prescribed, enforcing of those provisions of the Act would not breach fundamental right and, without taking any resort to the provisions of the Act, it is not permissible to move this Court on the theoretical basis that there is breach of fundamental right.
Whenever a person complains and claims that there is a violation of law, it does not involve breach of fundamental right for the en forcement of which alone article 32 of the Constitution is attracted.
[627E; 628A D] Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963] 1 SCR 778, relied on.
2.2 In a particular situation whether customs duty is payable at the rate prevalent on a particular date or not has to be determined under the four corners of the .
[627F] In the instant case, the petitioner has no fundamental right as such to clear any goods imported without payment of duties in accordance with the law.
There is procedure pro vided by law for determination of the payment of customs duty.
The revenue has proceeded on that basis.
The petition er cannot seek to remove the goods without payment at that rate or without having the matter determined by the proce dure envisaged and enjoined by the law for that determina tion.
The petitioner, without seeking to take any relief within the procedure envisaged under the Act, had moved this Court for breach of funda 623 mental right.
This is not permissible and should never be entertained.
[627F H] Relief under Article 32 of the Constitution is there fore, wholly inappropriate in the facts and circumstances of the instant case.
[628B]
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Civil Appeal No.2877 of 1977.
From the Judgment and Decree dated 19.8.1977 of the Punjab and Haryana High Court in R.S.A. No. 334 of 1975.
R. Bana for the Appellants.
Harbans Lal and G.K. Bansal for the Respondents.
The following Order of the Court was delivered: Kehar Singh had two wives, Basant Kaur and Sahib Devi.
Sahib Devi died during Kehar Singh 's life time.
Sahib Devi 's son was Niranjan Singh who also died during Kehar Singh 's life time.
Niranjan Singh had four sons and one daughter.
On 26th April, 1947 Kehar Singh in lieu of maintenance made three oral gifts of properties situated in three different villages in favour of his wife Basant Kaur.
The question which arose for consideration before the lower Court was whether Basant Kaur got an absolute estate in the gifted properties as result of the passing of the .
In regard to the land in village Ballowal the lower Courts have held that she got an absolute estate.
The High Court was concerned in the second Appeal with the lands in village Dhaipai and Chominda, and it held the gift having been without any power of alienation would fall under Section 14(2).
The Exhibit D I was the report of the Patwari in connection with the mutation proceedings and it said: "Today Kehar Singh owner of Khewat came alongwith Narain Singh Lambardar and stated that he had on 14th April, 1947, made an oral gift of land half of total land measuring 8 bighas Pukhta, 3 Biswas and 3 Biswani, which is 4 Bighas Pukhta, 12 Biswas and 1 Biswani as detailed in favour of his wife Mst.
Basant Kaur, and given possession of the same.
I had only one son who is dead and he had four sons and no other male issue.
There is no certainty of life.
She served me.
Lambardar attests so the mutation is entered.
" 387 On 30th July, 1947, the Assistant Collector made the following orders: "In the gathering, Kehar Singh donor and Basant Kaur donee, identified by Kishan Singh Lambardar are present.
The change of possession of this case is admitted and verified by the donor and the donee.
Donor stated that he has got no son.
I had got two wives.
My grand sons, it is possible may not gift maintenance to my wife.
With this view I make the gift.
Gift is for maintenance.
After gift there would be no powers of mortgage or sale.
After the death of Basant Kaur Malkiat Singh, Amar Singh, Gurdeep Singh and Mohan Singh, children would be heirs.
This gift is of 1/2 share or Khasra No.4658/2468 measuring 4 Bighas, 12 Biswas 1 Biswani, Khewat Nos. 324 to 326, which is attested in favour of Mst.
Basant Kaur donee.
" The High Court on interpretation of the Assistant Collector 's report came into conclusion that Basant Kaur derived only a limited estate inasmuch as such a gift, according to the high Court, would fall directly under section 14(2) of the and as such the limited estate of Basant Kaur would not stand enlarged into an absolute estate.
The challenge was to the gift made by Basant Kaur in favour of two step grand sons ignoring the other two.
There is no doubt that Basant Kaur had the right of maintenance and the gift was explicitly in lieu of maintenance.
As such we are of the view that it was not a case of her acquiring any new property by virtue of the gift but it was a case of her right of maintenance being given to her by way of a gift.
It was a property acquired by gift in lieu of maintenance.
This acquisition on 26th April, 1947 having been prior to the , we are of the view that she having acquired this property by way of gift in lieu of her antecedent right to maintenance, it would fall under sub section (1) and not under sub section (2) of section 14 of the .
In this view we are in consonance with the decisions in Bai Vijia (Dead) by Lrs.
vs Thakorbhai Chelabhai & Ors., ; ; Gulwant Kaur & Anr.
vs Mohinder Singh & Ors., [19871 3 SCC 674; Maharaja Pillai Lakshmi Ammal vs Maharaja Pillai Thillanayakom Pillai & Anr., ; and Jaswant Kaur vs Major Harpal Singh, In view of the facts and circumstances, we are of the view that the decisions of Mst.
Karmi vs Amru & Ors., [ and Kothi Satyanarayana vs Galla Sithayya & Ors.
, [ ; are distinguishable on facts.
388 In the result, the Judgment and decree of the High Court are set aside, this appeal is allowed and the suit is dismissed.
However, under the facts and circumstances of the case, we make no orders as to costs.
G.N. Appeal allowed.
|
The grandfather of the appellants and respondents had two wives.
The first wife and her only son died during his life time.
The pre deceased son left behind four sons and a daughter.
In 1947, the grand father made three oral gifts of certain properties in favour of his second wife, in lieu of maintenance.
Later, the grandmother gifted some of these properties to two step grandsons.
The gift was challenged by the other two grandsons.
The lower court held that she had the absolute estate in the properties after the possing of the .
In Second Appeal, the High Court held that she derived only a limited estate inasmuch as the gift in her favour would fall directly under section 14(2) of the and as such her limited estate would not stand enlarged into an absolute estate.
This appeal is against the said judgment of the High Court.
Allowing the appeal, this Court, HELD: 1.
There is no doubt that the donee had the right of maintenance and the gift was explicitly in lieu of maintenance.
It was a case of her acquiring any new property by virtue of the gift but it was a case of her right of maintenance being given to her by way of a gift.
It was a property acquired by gift in lieu of maintenance.
The acquisition made on 26th April, 1947 having been prior to the , and she having acquired the property by way of gift in lieu of her antecedent right to maintenance, it would fail under sub section (1) and not under sub section (2) of section 14 of the and she derived absolute estate in the properties.
[387E F] Bai Vajia (Dead) by Lrs.
vs Thakorbhai Chelabhai & Ors. ; ; Gulwant Kaur & Anr.
vs Mohinder Singh & Ors., ; ; Maharaja Pillai Lakshmi Ammal vs Maharaja Pillai Thillanayakom Pillai & Anr.
, ; ; Jaswant Kaur V. Major 386 Harpal Singh, ; relied on.
Karmi vs Amru & Ors., ; Kothi Satyanarayana vs Galla Sithayya & Ors.
, ; ; distinguished.
|
Civil Appeal No. 739 of 1991.
From the Judgment and Order dated 16.3.1990 of the Punjab and Haryana High Court in Regular Second Appeal No. 405 of 1990.
G.B. Pai, and P.N. Gupta for the Appellant.
Ashok K. Mahajan for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
This is an appeal by Special Leave against the decision of a learned Single Judge of the Punjab and Haryana High Court, dismissing summarily Regular Second appeal No. 405 of 1990 in that Court.
The relevant facts can be stated very shortly.
At the relevant time respondent No. 1 was an officer being the Manager in the Hardwar Branch of the appellant Bank, a Government of India Undertaking.
On April 2, 1982 a show cause notice was served on respondent No. 1 in respect of several irregularities, lapses, acts, omissions and so on.
On May 4,1982 respondent No. I submitted his reply to the said show cause notice denying the charges made against him and asking for the holding of an enquiry into the allegations.
On July 17, 1984 respondent No. 1 was promoted from Scale II to Scale Ill by the appellant.
It appears from the record that disciplinary action was contemplated against respondent No. I but in November 1984, the disciplinary proceedings contemplated against respondent No. 1 were kept in abeyance as some of the allegations against him were under investigation by the Central Bureau of Investigation (CBI) On March 11, 1988 interviews for promotion from Scale III to Scale IV were conducted and respondent No. 1 was one of the officers interviewed for promotion.
On April 27, 1988 a charge sheet was served on respondent No. 1.
On May 27, 1988 an enquiry was ordered against him and the Commissioner of Departmental Enquiries, Government of India, was appointed as the Enquiry Officer.
On June 30, 1988, respondent No. 1 filed a suit in the Court of Sub Judge, Second Class, Jallandhar 476 for a declaration that the Order dated April 27,1988 by which respondent No. I was served with charge sheet was illegal and in violation of the Service Regulations and unsustainable in law and prayed for permanent injunction restraining the appellant and others from proceeding with the enquiry on the basis of the said charge sheet.
One of the main contentions urged on behalf of respondent No. 1 in the said suit was that by reason of the promotion granted to him from Scale II to Scale Ill on July 17, 1984 as aforestated, which was after the irregularities and misconduct aileged against him had been committed and in view of the said promotion the appellant must be deemed to have condoned the earlier misconduct, if any, of respondent No. 1 and thereafter it was not open to the appellant to take any action against respondent No. I in respect of the said misconduct.
This contention found favour with learned Trial Judge who gave a declaration that the order, serving the charge sheet on respondent No. 1 was illegal and restrained the appellant and others from proceeding with the enquiry on the basis of the said charge sheet.
An appeal was preferred by the appellant against the said order in the court of learned Additional District Judge, Jallandhar but it was dismissed as learned Additional District Judge accepted the reasoning and conclusions of the learned Trial Judge.
The second appeal against the decision of learned Additional District Judge was dismissed by the High Court and this is an appeal directed against the judgment of the High Court.
It was submitted before us by Mr. Pai, learned Counsel for the appellant that the promotion granted to respondent No. 1 from Scale II to Scale Ill on July 17, 1984, could not be regarded in law as condonation of the earlier acts of misconduct committed by respondent No. 1.
It was urged by him that at that time no disciplinary proceedings had been initiated against respondent No. I and in view of this, the appellant had no option but to consider respondent No. 1 for promotion for which he was entitled to be considered and to promote him if he was found fit for promotion.
It was, on the other hand, contended by Mr.Rao, learned counsel for the respondent that the earlier acts of respondent No. 1, even if they constituted misconduct, could not be relied upon to take any disciplinary action against respondent No. I because they were condoned by reason of the aforesaid promotion.
In considering the submissions of the respective parties, we have to bear in mind that it is accepted before us that in law the mere fact that disciplinary proceedings are contemplated or under consideration against an employee does not constitute a good ground for not considering the employee concerned for promotion if he is in the zone of 477 consideration nor would it constitute a good ground for denying the promotion if the employee is considered otherwise fit for promotion.
In the present case, we find that this legal position is reinforced by clause (9) of the Promotion Policy of the appellant Bank.
Clause (9) reads as follows: "Clause 9.
Officers in respect of whom disciplinary action is in process will be permitted to take part in the promotion process, subject to the condition that the promotions (if they are selected) will be withheld until the Officer is exonerated from the charges.
In such an event the promotion will be given effect to from the date on which it would have been otherwise effective but for the disciplinary action.
The officer will not be eligible for promotion if punishment, except censure, was awarded as a result of the disciplinary action.
" On a plain reading of this clause it is clear that even if disciplinary action is in process against an officer of the appellant Bank, that would not entitle the appellant Bank to exclude from consideration for promotion the officer concerned if he is otherwise entitled to be so considered.
The only right given to the appellant in such cases is that, in case such an officer is otherwise found fit for promotion and selected for promotion, that promotion can be withheld until the officer is exonerated from the charges.
It is significant that the said clause goes to state that in case such an officer is exonerated from the charges, promotion will have to be given effect to from the date on which it would have been otherwise effective but for the disciplinary action.
This rule gives rise to the implication that till disciplinary action is in process or initiated, the officer concerned, against whom allegations of misconduct might be made, can neither be excluded from consideration for promotion if he is entitled to be considered otherwise nor can the promotion be denied to him.
In these circumstances, when the promotion from Scale II to Scale Ill was granted to respondent No. 1 on July 17, 1984, there could be no question of condonation of the earlier acts of misconduct by reason of this promotion because in law and in view of the said Regulation (9) the appellant had no option but to consider respondent No. 1 for promotion and if he was otherwise found fit for promotion to promote him.
In view of this conclusion, it must follow that the charge sheet submitted against respondent No. 1 and the disciplinary proceedings pursuant to the said charge sheet cannot be said to be bad in law and cannot be interfered with on the ground of condonation.
In our view, the courts below were 478 in error in holding that the earlier alleged acts of misconduct of respondent No. I had been condoned by the appellant and basing their conclusions thereon.
In support of his submissions relating to the question of condonation, Mr. Rao relied upon the decision of a Division Bench of the Calcutta High Court in L. W. Middleton vs
Horry Playfair, AIR (1925) Calcutta 87 and the decision of a learned Single Judge of the Nagpur High Court in District Council, Amraoti through Secretary vs Vithal, Vinayak Bapat, AIR (1941) Nagpur 125.
Both these cases lay down that once a master has condoned any misconduct on the part of servant which would have justified dismissal or a fine, he cannot, after such condonation, go back upon his election to condone and claim a right to dismiss him or impose a fine or any other punishment in respect of the offence which has been condoned.
In our view, these decisions are of no relevance in the present case.
At the time these decisions were rendered under the general law of master and servant it was open to the master to dismiss his servant or fine him on the ground of misconduct.
On the facts of both these cases the master had the option of dismissing the servant or finding him on the ground of misconduct but voluntarily did not take the action of dismissing or fining him on the ground of misconduct and it was held that thereby the master had condoned the earlier misconduct and could not thereafter rely on the said misconduct for punishing the servant.
In the case before us, however, at the time when the promotion was granted to respondent No. I on July 17, 1984, the appellant had no option but to consider respondent No. I for promotion and to promote him if he was found fit as no disciplinary proceedings had been initiated against him or could be said to be in process against him, as we have set out earlier.
In such a case, no question of condonation could arise.
The ratio of decision in Lal Audhraj Singh vs State of Madhya Pradesh, AIR 1967 M.P. 284 is also of no application to the case before us as that again was a case where the employer, namely, the State, had the option of punishing the employee and voluntarily refrained from doing so.
It was next contended by Mr. Rao that even if the disciplinary proceedings against respondent No. 1 were liable to be continued that constitutes no ground for holding up the promotion of respondent No. 1 from Scale III to Scale IV if he was otherwise found fit for promotion, as, on the date when the selections for that promotion were made, no charge sheet had been served on respondent No. I and it is the accepted position here that till the charge sheet was submitted it could not be said that disciplinary proceedings were in process or 479 had been initiated.
It was submitted by Mr. Rao that this contention was fortified by the provisions of Clause (9) of the Promotional Policy of the appellant, which we have discussed earlier.
It was urged by him that it was on this ground that the appellant had based its case regarding the validity of the disciplinary proceedings against respondent No. 1 and on the same basis respondent No. I was entitled to be promoted from Scale Ill to Scale IV as from March 1988 if he was found fit.
It was submitted by him that since the charge sheet was served on respondent No. 1 over a month after he was considered for promotion from Scale Ill to Scale IV, it was not open to the appellant to hold back the consideration of the case of respondent No. I for promotion from Scale III to Scale IV or to deny him the promotion if he was found fit.
It appears to us prima facie that the submissions of Mr. Rao in connection with promotion of respondent No. 1 from Scale Ill to Scale IV are not without substance.
However, it is unnecessary for us to decide this question because Mr. Pai, learned counsel for the appellant has agreed that without creating a precedent, the appellant will grant promotion to respondent No. 1 from Scale Ill to Scale IV if it is found that the Departmental Promotion Committee found him fit for promotion and that this promotion will be granted from the date on which he would have been promoted but for the departmental enquiry being contemplated against him.
In the result, the appeal is allowed to the extent aforestated and the impugned order of the High Court quashing the departmental proceedings is set aside.
The departmental enquiry shall be proceeded with and completed within a period of six months according to law.
As far as question of promotion of respondent No. 1 from Scale III to Scale IV is concerned, that question will be considered in the light what has been agreed to by Mr. Pai, as set out earlier.
Parties shall bear and pay their own costs throughout.
T. N. A. Appeal allowed.
|
Clause 9 of the promotion policy of the Appellant Bank provides that an officer in respect of whom disciplinary action is in process will be permitted to take Part in the promotion process, subject to the condition that his promotion will be withheld until the officer is exonerated from the charges and in case such an officer is exonerated from the charges, the promotion shall take effect from the date on which it would have been otherwise effective but for the disciplinary action.
Respondent 1, a Bank Manager, was Promoted from Scale II to Scale Ill under the aforesaid clause while disciplinary proceedings were contemplated against him.
Later he was also interviewed for promotion from Scale IlI to Scale IV.
thereafter the appellant Bank charge sheeted him and initiated a departmental inquiry against him.
He challenged the legality of the bank 's action by filing a declartory suit contending that in view of the promotion granted to him, the appellant Bank must be deemed to have condoned the earner misconduct and subsequent to his promotion it was not open to the Bank to take any action against himn.
The Trial Court allowed the suit and restraied the appellant bank from Proceeding with the inquiry by holding the charge sheet illegal.
The order of the trial court was affirmed by the first appellate court and the second appeal filed by the bank was also dismissed by the High Court.
In appeal to this court, it was contended on behalf of the bank that the grant of promotion to the appellant under clause 9 cannot be regarded in law as condonation of pre promotion misconduct.
On behalf of the respondent, it was contended that even if the continuation of 474 disciplinary proceedings was valid, it was not a ground for holding up of his promotion from Scale Ill to Scale IV because on the date of interview no charge sheet was served on him.
Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
The mere fact that disciplinary proceedings are contemplated or under consideration against an employee does not constitute a good ground for not considering the employee concerned for promotion if he is in the zone of consideration nor would it constitute a good ground for denying the promotion if the employee is considered otherwise fit for promotion.
Clause 9 of the Promotion Policy of the Bank gives rise to the implication that the disciplinary action is in process or initiated, the officer concerned, against whom allegations of misconduct might be made, can neither be excluded from consideration for promotion if he is entitled to be considered for promotion otherwise nor can the promotion be denied to him.
In these circumstances, when the promotion from Scale II to Scale III was granted to respondent, there could be no question of condonation of the earlier acts of misconduct by reason of this promotion because in law and in view of clause 9 of the Promotion policy appellant had no option but to consider respondent for promotion and if he was otherwise found fit for promotion to promote him.
Hence the charge sheet submitted against respondent and the disciplinary proceedings pursuant to the said charge sheet cannot be said to be bad in law and cannot be interfered with on the ground of condonation.
Therefore, the courts below were in error in holding that the earlier alleged acts of misconduct of respondent had been condoned by the appellant and basing their conclusions thereon.
[476G H; 477F H; 488A] L.W. Middleton vs Horry Play Fair, AIR 1925 Cal. 87; District Council, Amraoti through Secretary vs Vithal Vinayak Bapat, AER 1941 Nagpur 125 and Audhraj Singh vs State of Madhya Pradesh, AIR.
M.P. 284; held inapplicable.
In view of the fact that the appellant bank has agreed that without creating a precedent it will grant promotion to respondent from Scale Ill to Scale IV, if the departmental promotion Committee finds him fit for promotion and that this promotion will be granted from the date on which he would have been promoted but for the departmentl inquiry being contemplated against him, it is unnecessary to express any opinion on the submission that since on the date of selection for promotion from Scale III to Scale IV, no charge sheet was served on the 475 respondent it was not open to the bank to hold back the respondent 's promotion from Scale IH to Scale IV.
[479C D]
|
ivil Appeal No. 822 of 1978.
From the Judgment and Order dated 23.3.1977 of the Andhra Pradesh High Court in Case Referred (Estate Duty Case) No. 6 of 1975.
450 T.A. Ramachandran and Ms. Janki Ramachandran for the Appellant.
S.C. Manchanda, Ms. A. Subhashini (NP) and K.P. Bhatnagar for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
This appeal by certificate arises from the judgment of the Andhra Pradesh High Court dated 23.3.1977 in Estate Duty Case No. 6 of 1975.
Answering the questions referred to it against the appellant and in favour of the Revenue, the High Court held that, in computing the net principal value of the estate for the purpose of the ("the Act"), the appellant was not entitled to deduct either the estate duty payable on the estate or the amount attributable to the maintenance of the wife of the deceased.
The appellant 's counsel, Mr. T.A. Ramachandran, submits that the duty payable on the estate of the deceased is an encumbrance on the estate, being a first charge on the property passing on the death, and is, therefore, deductible in terms of Section 44 of the Act.
According to counsel, all properties passing on the death of the deceased are encumbered to the extent of the duty payable by reason of the charge created by section 74 of the Act and that duty has to be deducted from the total value of the estate which is subjected to the levy of duty in terms of section 5.
Counsel further submits that the amount attributable to the maintenance of the wife during the life of her husband must also be treated as a debt deductible under section 44.
Mr. S.C. Manchanda, appearing for the Revenue, submits that the claim of the appellant has no warrant in the law and is totally unsupported by any judicial decision.
He submits that estate duty falls upon the property passing upon the death.
The property at the time of the passing was not encumbered by the duty, for duty became payable only upon its passing and was, therefore, not a liability to which the estate was subjected during the life of the deceased.
It becomes so encumbered only subsequent to and consequent on the death.
He futher submits that there is not the smallest foundation for the claim for deduction in respect of the maintenance of the wife during the life of the husband, as contended by the appellant 's counsel, for the estate was never charged with the amount attributable to the maintenance of the wife.
A wife 's claim for maintenance either during the life her 451 husband, or subsequent to the death of her husband, is not a charge on the property and is not a deductible amount in terms of the Act.
We shall first deal with the claim for deduction of estate duty.
Section of the 5 of the Act, insofar as it is material, reads: "Levy of estate duty.
In the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all peroperty, settled or not settled, includng agricultral land. . which passes on the death of such person, a duty called "estate duty" at the rats fixed in accordance wth section 35.
(2). . . . ." Sub section (1) of section 5 imposes a duty upon the net principal value ascertained of 'all property" which passes on the death of a person.
All properties passing on a death, other than those which are exempted from duty (See section 21 to 33), are, for the purpose of levy under the Act, aggregated into one estate, which is the "property" on which duty is levied at the rates applicable in respect of its principal value (Section 34 and 35), but subject to the deductions permitted under of the Act.
The properties are valued, for the purpose of levy under the Act, in accordance with the provisions of Section 36 says that the principal value of any property shall be estimated to be price which, in the opinion of the Controller, such property would fetch if sold in the open market at the time of the death of the deceased.
of the Act contains section 44 to 50B dealing with deductions in determining the chargeable value of the estate.
Section 44 says that, in determining the value of an estate, allowance has to be made for funeral expenses not exceeding rupees one thousand and for debts and incumbrances.
The section, however, provides that no allowance shall be made in respect of matters enumerated under clauses (a) to (d) of the section.
The "debts and encumbrances" mentioned in section 44 are, as a 452 general rule, debts and encumbrances incurred before the death of the deceased.
Certain exceptions are, specifically provided in section 44 and the other provisions of Reasonable funeral expenses, cost of realising or administering foreign property, allowance for duty paid in a non reciprocating country, relief from estate duty where court fees have been paid in any State for obtaining probate, letters of administration or a succession certificate, and, relief from estate duty where tax has been paid on capital gains are, in the specified curcumstances, allowable deductions in the determination of the value of the estate for the purpose of estate duty, notwithstanding that such liabilities arose subsequent to the death.
In no other case does the Act postulate deduction or allowance for any debt or encumbrance incurred subsequent to the passing of the property upon the death.
Singinficantly, estate duty payable on the estate of the deceased is not one of those exceptions to the general rule.
Section 53 makes certain persons accountable for the whole of the estate duty on the property passing on the death.
These are the legal representatives, trustees, guardians, committees or other persons in whom any interest in the property or the management thereof at the any time vested.
They are accountable for the whole of the estate duty on the property passing on the death of the deceased, but their liability is limited to the assest of the deceased which they have actually received or which, but for their own neglect or default, they might have received.
Any default or concealment on their part in the discharge of their duties will make them liable for the penalty provided under section 60.
Section 74 says that duty payable in respect of property, passing on the death of the deceased, is a first charge on the property so passing.
Any claim in respect of such duty is not liable to be defeated by any private transfer or delivery of such property.
Any such private transfer or delivery is void against such a claim.
Section 74 reads: "Estate duty a first charge on property liable thereto.
74(1).
Subject to the provisions of section 19, the estate duty payable in respect of property, movable or immovable, passing on the death of the deceased, shall be a first charge on the immovable property so passing (including agricultural land) in whomsoever it may vest on his death after the debts and incumbrances allowable under of this Act; and any private transfer or delivery of such property shall void against any claim in respect of such estate duty.
(2) A rateable part of the estate duty on an estate, in proportion to the value of any beneficial interest in possession in movable property which passes to any person (other than the legal representative of the deceased) on the death of the deceased shall be a first charge on such interest: Provided that the property shall not be so chargeable as against a bona fide purchasr thereof for valuable consideration without notice.
3. . . . " The sechme of the Act, as the above provisions indicate, is to levy estate duty upon the net principal value of all property,as aggregated and ascertained under the Act, and which passes on the death of the person who was competent to dispose of such property at the time of his death (section 6) or which is deemed to pass on his death (section 7 to 17).
The expression "passes on the death" denotes change in the title or possession of the whole property taking place at the death.
It is immaterial to whom the property passes.
"The question. is not to whom has the property passed, the question is whether it has passed at all".
Per Lord Blanesburgh, Inland revenue Commissioners vs
Crossman, , 'Estate duty falls upon the property passing upon a death. " Per Lord Loreburn, L.C., Winans & Another vs Attorney General, ,30.
the levy is upon the principal value of such property ascertained as provided under the Act.
Property changes hands at the time of the death, by reason of the death, and, therefore, subsequent of the death.
The imposition of the charge under the Act does not arise until the death has actually occurred and the property has, thereupon, passed.
The liability to pay estate duty is fastened on the persons accountable.
But their liability is limited to, and will not exceed, the assets of the deceased actually received by them, or which, but for their neglect or default, they might have received.
Apart from the personal liability cast on the persons accountable, and their liability to penalty in the event of default or cocealment, the duty payable is charged on the property itself and any private transfer or delivery is void against any claim in respect of such duty.
Essentially and basi 454 cally, therefore, the duty is a burden on the estate and that burden is fastened on the estate upon the death of the deceased.
During his life, no liability under the Act arose or could arise.
Subject to the limitations and exceptions statutorily specified, the allowable deductions in the determination of the changeable value of the estate are the debts and encumbrances incurred before the death of the deceased.
Esate duty falling upon property passing upon the death had not become a debt or encumbrance utill the death of the deceased, and is, therefore, not deductible.
The view is consistent with the conclusion reached on the point by various High Courts, , [1978] 111 ITR 365 ( Gujarat), [1981] 127 ITR 642 (Allahabad), [1981] 132 ITR 871 (Madras), [1982] 137 ITR 801 (Gauhati), [1990] 186 ITR 29 (Bombay).
This conclusion was adopted by the Andhra Pradesh High Court in Controller of Estate Duty vs Estate of Late Omprakash Bajaj, and it was that decision which was followed by the High Court on this point in the judgment under appeal.
The High Court, in our view, rightly disallowed the claim for deduction of the estate duty in the computation of the net principal value of the estate.
As regards the claim for deduction of the amount attributable to the maintenance of the wife of the deceased during his life, there is no evidence or any finding to show that the estate had been burdened with any such debt or encumbrance by reason of the husband 's failure to act upto his statutory obligation to maintain his wife (see Section 18(1) of the ).
The wife is of course a sharer of the assets left behind by her husband (see Section 8 of the ).
This claim was also, in our view, rightly disallowed by the High Court.
In the curcumstance, for the reasons we have stated, the appeal is dismissed.
Howerver, we do not make any order as to costs.
V.R.R. Appeal dismissed.
|
The High Court in a reference under the held that in computing the net principal value of the estate for the purpose of the Act, the appellant was not entitled to deduct either the estate duty payable on the estate or the amount attributable to the maintenance of the wife of the deceased.
The question was answered accordingly in favour of the Revenue.
The appellant contended in the appeal by certificate that estate duty being a first charge on the estate passing on the death was an encumbrance and, therefore, deductible and the amount of the maintenance of the wife during her husband 's life was also deductible.
The Respondent contended that estate duty being payable only upon the estate passing on the death, it was not a liability which was deductible.
Deduction in respect of the maintenance of the wife during the life of her husband also was not permissible.
Dismissing the appeal, this Court, HELD: 1.
The levy is upon the principal value of the property ascertained as provided under the Act.
Property changes hands at the time of the death, by reason of the death, and, therefore, subsequent to the death.
The imposition of the charge under the Act does not arise until the death has actually occurred and the property has, thereupon, passed.
[453E G] 449 2.
The liability to pay estate duty is fastened on the persons accountable.
But their liability is limited to, and will not exceed, the assets of the deceased actually received by them, or which, but for their neglect or default, they might have received.
Apart from the Personal liability cast on the persons accountable, and their liability to penalty in the event of default or concealment, the duty payable is charged On the property itself and any private transfer or delivery is void against any claim in respect of such duty.
Essentially and basically, therefore, the duty is a burden on the estate and that burden is fastened on the estate upon the death of the deceased.
During his life, no liability under the Act arose or could arise.
[453G 454A] 3.
Subject to the limitations and exceptions statutorily specified, the allowable deductions in the determination of the chargeable value of the estate are the debts and encumbrances incurred before the death of the deceased.
Estate duty falling upon property passing upon the death had not become a debt or encumbrance until the death of the deceased, and is, therefore, not deductible.
[454B C] 4.
As regards the claim for deduction of the amount attributable to the maintenance of the wife of the deceased during his life, there is no evidence or any finding to show that the estate had been burdened with any such debt or encumbrance by reason of the husband 's failure to act upto his statutory obligation to maintain his wife.
[454E F] 5.
The expression "passes on the death" denotes change in the title or possession of the whole property taking place at the death.
It is immaterial to whom the property passes.
[453D E] Inland Revenue Commissioner vs Crossman, ; Winans & Another vs Attorney General, , referred to ; [1978] Ill ITR 365 (Gujarat); [1981] 127 ITR 642 (Allahabad); [1981] 132 ITR 871 (Madras); [1982] 137 ITR 801 (Gauhati); [1990]186 ITR 29 (Bombay); Controller of Estate Duty vs Estate of Late Omprakash Bajaj, approved.
|
N: Criminal Appeal No. 480 of 1979.
From the Judgment and Order dated 3.4.1979 of the Madhya Pradesh High Court in Criminal Appeal No. 239 of 1974.
R.C. Kohli for the Appellant.
U.N. Bachawat and Uma Nath Sing with him for the Respondent.
457 The Judgement of the Court was delivered by AHMADI,J. The appellant has been convicted under Section 302/34, IPC, for causing the murder of one Negji, son of the Parthesingh, of village Melakhedi.
The prosecution case was that the family of the appellant and the family of the deceased were at loggerheads since quite sometime and there was bad blood between them.
In 1967, Bhowansingh, a member of the complainant 's family is stated to have been murdered by the appellant 's party.
Thereupon, the deceased along with others is stated to have fatally assaulted Bhagwansingh and Bahadursingh and inflicted grievous injuries of Govardhansingh.
These three are none other than the sons of the appellant.
The deceased and his companions were, however, acquitted.
It is said the appellant, Daryao Singh was, therefore, keen to avenge the deaths of his sons.
As a sequel to the earlier incident, it is said that the incident in question occurred on 25th September, 1970 at about 4.00 p.m.
The fact that relations between the two families were strained is, therefore, not in dispute.
On 25th September, 1970, the deceased, Negji, was working in his field along with his son PW 4 Bhanwar Singh.
At that time the appellant went there in the company of Nagusingh Govardhansingh and Bapusingh.
Nagusingh was armed with a gun and a stick with dharia like blade, Govardhansingh was armed with a similar weapon, the appellant was armed with a sword and Bapusingh possessed a gun.
They lanuched an attack on the deceased Negji whereupon the the latter raised an alarm which attracted the attention of Pw 1 Bherusingh and Pw 3 Bhuwan Singh, who were working in the adjacent filed.
They reached the spot and witnessed the incident.
On their raising a hue and cry, the appellant and his companions fled away.
PW 4 had run away frightened when a shot was fired at him.
The deceased, Negji, sustained serious injuries on the head and his right leg was cut into two.
PWs 1 and 3 went in search of PW 4 but on the way met two police constables PW 8 Chhotelal and PW 10 Itratkhan.
They narrated the incident and disclosed the names of the assailants to them.
All the four returned to the place of occurrence, placed Negji in a cart and proceeded towards the police station.
But the injured passed away on the way.
The dead body appears to have been taken to the hospital on the next day at about 5.20 p.m. PW 2 Dr.
Sharma, performed the post mortem examination on 27th September, 1970 at about 7.00 a.m. Except the appellant the rest of the assailants could not be put to trial as they were reportedly absonding.
458 The prosecution mainly relies on the evidence of PW 1,3 and 4.
In addition, the prosecution seeks corroboration from the evidence of the two Police Constables PWs 8 and 10 whom the names of the assailants were disclosed immediately after the incident.
PW 8, however, turned hostile and was permitted to be cross examined by the learned Public Prosecutor.
This, in brief, is the prosecution evidence against the appellant.
The learned Trial Judge on an appreciation of the prosecutiion evidence concluded that having regard to the long standing enmity between the two families it was hazardous to place implicit reliance on the interested testimony of PWs 1,3 and 4, more so because their testimony was not corroborated in material particulars by independent evidence.
Besides, according to the Trial Judge, the evidence of DW 3 Keshav Shanker Varang established that the appellant was a physically disabled person who could not have weilded the sword with such ferocity as to cut the right leg into two pieces.
To disbelieve the prosecution case the learned Trial Judge referrd to the evidence of the hostile Constable, PW 8, but failed to take note of the evidence or PW 10.
As the three eye withnesses were closely related to the deceased, the learned Trial Judge applied the rule of prudence and thought it wise not to base a conviction on thier uncorroborated evidence.
He therefore, acquitted the appellant.
Feeling aggrieved by the order of acquittal passed by the learnd Trial Judge, the State of Madhya Pradesh preferred an appeal of the High Court which was disposed of by a Division bench by its impugned judgment and order dated 3rd, 1979.
The Division Bench held that although the three prosecution witnesses were closely related to the deceased their evidence could not be discarded solely on the ground that they were interested and partisan witnesses, but all that the rule of prudence demanded was to evaluate their evidence with caution.
On a close scrutiny of the evidence of the said three witnesses, the Hight Court found that nothing was brought out in their cross examination to doubt their credibility.
On the contrary the High Court felt that their evidence was partly corroborated by PW 10 and medical evidence.
So far as the evidence of PW 8 is concerned the High Court observed that he had turned hostile and had deliberately departed from his earlier statement to the Police as well as the entry in his police diary.
In this view of the matter, the High Court reversed the order of acquittal and convicted the appellant under section 302/34, IPC.
It is this conviction which is assailed before us in this appeal by the appellant.
459 The learned counsel for the appeallant took us through the evidence of PWs 1,3 and 4.
PWs 1 and 3 are the brothers of the deceased and PW 4 is his son.
Indisputably there was bad blood between the two families on account of past incidents which may have ignited a desire for vendatta in the appellant and his companions.
At the same time, the High Court also cautioned itself to the possibility of false involvement on account of the long standing enmity.
The Hight Court then scrutinised the evidence of the aforesaid three witnesses and found that their evidence had no been shaken by elaborate cross examination.
That means, according to both the Courts, if their evidence can be trusted as credible, it would prove the appellant 's involvement in the crime.
Therefore, if their evidence is otherwise found to be reliable there can be no doubt that a conviction can be based on their evidence, notwithstanding (i) their close relations with the deceased, and (ii) the long standing enmity between the two families.
We too have perused their evidence and taken at its face value we find no infirmity.
Even the learned counsel for the appellant did not contend that there was any intrinsic infirmity in their evidence.
All that he submitted was that it would be unwise to convict the appellant on their evidence without seeking corroboration.
Since PW 8 has deliberately departed from his earlier version and has not told the truth his evidence cannot dilute their evidence.
Immediately after the incident , while PWs 8 and 10 were passing by, they were informed of the incident and the names of the assailants were disclosed to them, in regard to which they made enteries in their respective diaries.
The contradiction brought on record in the cross examination of PW 8 shows that the names of the assailants were disclosed to him.
This was sought to be further reinforced by the entry in his diary wherein the name of the appellant appeared as one of the assailants.
The learned Trial Judge wrongly attributed this entry to the ingenuity of the investigation officer.
It is, therefore, obvious that PW 8 is not a dependable witness.
The High Court 's conclusion in this behalf is unassailable.
The learned Trial Judge made no reference to the evidence of PW 10.
The High Court has referred to his testimony.
This witness stated that while he and PW 8 were passing by, a frightened PW 1 approached them and reported that his brother was assaulted by the appellant and his companions.
The High Court has accepted the testimony of the witness and we think rightly.
The evidence of the witness, therefore, lends corroboration to the prosecution version regarding the involvement of the appellant.
This discloseure was made to PW 10 immediately after the incident before there was any time of deliberation or concoction.
the medical evidence shows that the deceased had as many as seven injuries, one of which was on the skull.
the number and nature of the 460 injuries clearly indicate that more than one person was involved in the assault.
It is, therefore, clear that the medical evidence also lends corroboration to the prosecution version to this limited extent.
Strong reliance was, however, placed by the learned counsel for the appellant on the evidence of PW 2 Dr.
Sharma.
This witness has after describing the various injuries stated that the body was cold, rigor mortis and passed off and the body was decomposed when he performed the post mortem examination on the morning of 27th September, 1970.
He also noticed blisters containing reddish fluid all over the body.
The abdomen was swollen and greenish discoloration was noticed.
In his opinion death was caused on account of the brain injury.
In paragraph 6 of his deposition he stated "the duration of injury since death was 36 to 48 hours".
In cross examination he said: "As the dead body was decomposed externally and internally blisters had formed all over the body, scrotum distented, marks of swelling on body, presence of magets on body; all these symptoms do indicate that their duration of injury since death could be 14 to 20 days also.
" On the basis of these statements made by PW 2, counsel for the appellant strongly argued that death must have taken place long before 25th September, 1970 since blisters had appeared on the body.
In this connection, he placed reliance on the table found at page 134 of Modi 's Medical Jurisprudence and Toxicology,(12th Edn.).
It read as under: Putrefactive changes Time 1 to 3 days after 1.
Greenish coloration death.
over the iliac fossae The eyeballs, soft and yielding.
Green coloration spreading 3 to 6 days over the whole abdomen, after death.
external genitals and other parts of the body.
Frothy blood from mouth and nostrils.
Abdomen distrended with gas.
Cornea 8 to 10 days fallen in and concave.
Pur after death.
lish red streaks of veins prominent on the extremities, Sphincters relaxed, Nails firm.
461 4.
Body greenish brown.
Blisters 14 to 20 days froming all over the body.
Skin after death.
peels off.
Features unrecogniz able.
Scrotum distension.
Body swallow up owing to distorsiopn Maggots on the body.
Nails and hair loose and easily detached.
Soft parts changed into a thick, semi 2 to 5 fluid, black mass.
Skull, abdomen and months thorax burst.
Bones exposed.
Orbits after empty.
death.
_______________________________________________________ It is indeed suprising that no such submission was made on behalf of defence before the Trial Court as well as the High Court.
Even in the memo of appeal no such precise contention appears.
Hoeever, we have thought it proper to examine the submission on merits rather than reject it on a technical ground.
Counsel of the appellant strongly relied on this statement of PW 2 Dr.
Sharma and contended that the presence of blisters all over the body is a sure pointer to the fact that death had taken place 14 to 20 days before the post mortem examiniation.
It may be recalled that the deceased was 45 years of age and was the victim of violent attack with lethal weapons in which he had suffered a fatal semi circular woundon the scalp 6" x 4" extended by 2" to the left mid line.
In addition thereto he had received incised wounds on his left forearm resulting in fractures.
His right leg was cut into two pieces 6" below the tibia, liquified blood was oozing out, maggots were prersent, blisters were seen all over the body and the soft cuticle peeled off easily.
There was another cut wound on the left leg exposing the tibia.
A 5" wound was seen at the right side of the mouth.
It was the scalp injury which caused the death.
It is common knowledge that after death the body starts to cool down to the surrounding temperature.
The cooling of the body is the earliest phenomenon which is followed by post mortem lividity resulting from discontinuance of blood circulation and collection of blood in certain parts under gravitational action, depending on the position of the dead body.
the stoppage of blood circulation and the inaction of the natural defensive mechanism result in the bacteria present in the body as well as those that enter from outside getting scattered in everypart of the body setting in the process of putrefaction, unless special 462 care is taken to prevent the same.
Decomposition in thus essentially the process of putrefaction which is dependent on environmental climatic conditions.
In the present case death had occurred on 25th September and the dead body lay in the police station with the wounds exposed till it was brought to the hospital at 5.20 p.m. on the next day.
The body remained in the same condition in the hospital till 7.00 a.m. on the next day when the post mortem examination was undertaken.
The bdy thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off.
Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity.
Body changing colour and emitting foul smell, are the two special characteristics of the decomposition process.
The first external evidence of putrefaction is the formation of greenish discoloration of the abdominal skin over the iliac fossae which occurs within six to twelve hours in summer and spreads all over the body within twelve to eighteen hours of death.
As time passes they deepen in colour and become purple.
With the spread of bacteria, there is gradual development of gases in the intestines within twelve to eighteen hours and liquefaction also takes place and soon spreads to other parts of the body.
Putrefaction thus results in general disintegration of the tissues due to residual enzymatic activity in the cells causing widespread formation of gases emitting foul smell and if the body is exposed, as in the present case, files lay eggs on exposed wounds forming maggots.
The body gets bloated and liquified, the skin looses coherence, the superficial layers peel off easily and blisters are formed.
it is, therefore, not suprising that owning to the formation of gases the penis and the scrotum were swollen and there was the presence of maggots.
Before we answer the contention it is essential to notice a few facts.
The evidence of PWs 1,3 and 4 is that the incident occurred in the field of the deceased.
This fact is corroborated of PW 5 Motilal and PW 6 Parbatsingh.
The find of blood on the grass blades and on the earth attached under the seizure memo Exh.
p 8 confirms their testimony.
The evidence of these witnesses further shows that the injured was taken in a cart to the village and from there to the Bhakheda police station.
this is further established by PW 10 who has deposed that the vitim was brought in a cart to the village.
the circle Inspector PW 12 also deposes that the corpse was brought to the police station and from there it was sent to the hospital for post mortem examination which was undertaken on 27th September, 1970 at 7.00 a.m.
This evidence establishes the chain of events showing the movement of the dead body and rules out of the theory that death had taken 463 place many days before 25th September, 1970, a theory not put to the witnesses in cross examination.
The direct testimony, therefore, does not support the theory urged on behalf of the appellant.
Counsel for the appellant, however, emphasised that the statement of PW 2 in cross examination clearly established the existence of blisters, an objective fact, which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September, 1970.
It is interesting to note that table on which the learned counsel for the appellant relies is omitted from the 19th and 20th edition of the book.
But that apart at pages 128 129 of the bok (Twentieth Edition) it is stated as under: "From twelve to eighteen hours after death in summer the green coloration spreads over the entire abdomen and the external genitals. . .
Side by side with the appearance of the greenish patch on the abodomen the body begins to emit a nauseating and unpleasant smell owing to gradual develoment of the gases of decomposition, some of which are sulphuretted hydrogen, marsh gas, carbon dioxide, ammonia and phosphoretted hydrogen.
From twelve to eighteen hours after death in summer these gases collect in the intestine, consequently abdomen swells up.
The sphincters relax, and the urine and faeces may escape.
From eighteen to thirty six or forty eight hours after death the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distored, the eyes are forcedout of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted.
A frothy, reddish fluid or mucus is forced from the mouth and nostrils.
Ultimately the features become obilterated and unrecognizable.
The abdomen becomes greately distended; hence on opening the cavity the gas escapes with a loud explosive noise.
Owing to the pressure of the gases the stomach contents are forced into the mouth the larynx and are seen running out of the mouth and nostrils.
The breast of female bodies are greatly distended.
The penis and scrotum become enormously swollen.
The cellular tissues are inflated throughout, so that the shole body appears stouter and older than it actually is.
464 These gases from blisters under the skin containing a reddish coloured fluid on the various parts of the body.
When these bursts, the cuticle being softened peels of easily.
These are characterised by absence of vital reaction.
It will thus be seen that blisters appear after the process of decomposition sets in whithin eighteen to fotry eight hours.
It shows that the existence of blisters does not mean that death had taken place 14 to 20 days ago.
That is why PW 2 is cautious to use the pharseology 'the duration of the injury since death could be 14 to 20 days also '.
Having regard to the nature of the direct testimony to which we have adverted earlier andthe passage reproduced above, we find it difficult to accept the belated submissions of the learnd counsel for the appellant that the opinion of the medical expert PW 2 destroys the version of the prosecution witnesses, particularly PWs 1,3,4 and 10, that the deceased suffered a fatal wound on the evening of 25th September, 1970 to which he succumbed on that very day.
We, therefore, reject this submission.
It was lastly submitted that the evidence of the radiologist.
Keshav Shanker Varang, DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts.
In this connection, our attention was drawn to paragraph 7 of his deposition, wherein he has stated that looking to the fracture of the appellant 's leg and his chest condition he was a disabled person who could not run fast or walk quickly and, therefore, argued counsel, he could weild the sword with such ferocity as to cut the leg in to parts.
In cross examination he has admitted that he had not examined the muscle power the appellant.
He conceded that the elbow was free and, therefore, he could use the weapon but not with great force.
The High Court has considered this submission in paragraph 8 of its judgment and has rejected it.
We do not think that having regard to the fact that the appellant alone was weilding the sword, it is to rely on this opinion evidence in preference to the direct evidence of three witnesses.
High Court has rigtly rejected this submission and we need not dilate on it.
For the above reason, we see no merit in this appeal and dismiss the same.
Bail cancelled.
The appellant will surrender forthwith.
|
The appellant has been convicted under Section 302/34, Indian Penal Code, by the high Court, for the murder of one Nagji, with whom he had strained relations.
According to the prosecution there was bad blood between the family of the appellant and the deceased and there have incidents in the past, the last being the murder of two sons of the appellant and inflicting of grievous injuries on the third son, by the deceased, in which case, the deceased and his companions were acquitted.
The appellant was keen to avenge the deaths of his sons and with that end in view, on 25th Septemeber, 1970, he along with three others, duly armed with guns and sticks, attacked the deceased, Negji, while he along with his son PW4 was working in his field.
The deceased Negji raised an alarm which attacted the attention of PW 1 and PW 3, who were working in the adjacent field.
They reached the spot and withnessed the incdent.
On thier raising hue and cry, the appellant and his companions fled away PW 4 had run away frightened when a shot was fired at him.
The deceased Nagaji received serious injuries on the head and his leg was cut into two peices.
PWs 1 and 3 went in search of PW 4 and on the way met two police constables PW 8 and PW 10 to whom they narrated the whole incident and disclosed the names of the assailants.
The deceased passed away, when his body was being taken to the police station.
The postmortem examination was performed on the 27th at 7 a.m.
The appellant was put up for trial, as others were abscondng.
The learned trial Judge n appreciation of the prosecution evidence held that having regard to the long standing enmity between the two families, it was hazardous to place implict reliance on the interested testimony of PWs 1,3 and 4, more so because their testimony was not corroborated in material particulars by independent evidence.
The Trial Judge applying the rule of prudence, did not convict the appellant on uncorroborated evidence of interest withnesses and accordigly acquitted the appellant.
The State preferred an appeal to the 456 High Court.
The High Court held that although the three prosecution witnesses were closely related to the deceased, their evidence could not be discards solely on the ground they were interested and partisan witnesses.
The High Court found their evidence duly corroborated and therefore reversed and order of acquittal and convicted the appellant under Section 302/34, I.P.C.
In this appeal the appellant had challenged his conviction.
Apart from the question of appraisal of evidence,the appellants has placed strong reliance on the testimony of PW 2, Dr. Sharma and argued for the first time in the Court that his testimony shws that the death must have taken place long before 25the September 1970 there being blisters containing reddish fluid all over the body.
Dismissing the appeal, this Court, HELD: Death had occurred on 25th September 1970 and the dead body law in the police station with the wounds exposed till it was brought to the hospital at 5.20 p.m. on the next day.
The body remained in the same condition in the hospital till 7.00 a.m. on the next day when the post mortem examination was undertaken.
The body thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off.
Ordinarily after rigor mortis has passed off, the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity.[462A C] The evidence establishes the chain of events showing the movement of the dead body and rules out the theory that death had taken place many days before 25th September 1970, a theory not put to the witnesses in corss examination.[462H 463] Blisters appear after the process of decomposition sets in within eighteen to forty eight hours.
It shows that the existence of blisters does not mean that death had taken 14 to 20 days ago.[464B]
|
ivil Appeal No. 1430 of 1990.
From the Judgment and Order dated 21.10.1989 of the Central Government Industrial Tribunal, New Delhi in I.D. No. 40 of 1986.
N.B. Shetye and A.M. Khanwilkar for the Appellant.
Ashok H. Desai, R.P. Bhatt.
P.H. Parekh and Mrs. Sumita Sharma for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is directed against the Award of the Central Government Industrial Tribunal, New Delhi, in I.D. No. 40 of 1986 published in the Gazette of India, New Delhi dated 21.10 89.
The appellant is the Mathura Refinery Mazdoor Sangh (here after referred to as 'Union ').
The contesting respondent is the Indian Oil Corporation Ltd., Mathura Refinery Project, Mathura, U.P. (hereafter referred to as the 'Refinery ').
The Union represents about 900 casual labourers working in the Refinery.
These labourers are contract labourers coming under the Contract Labour (Regulation & Abolition) Act, 1971.
The nature of their work has grouped them .Some of the labourers have formed themselves into cooperative societies and those societies have entered into labour contracts with 470 the Refinery.
Other labourers are working under labour contractors who have contracts with the Refinery.
Theirs is not a constant relationship with one contractor and these labourers keep shifting from one contractor to another.
However it is claimed that these casual labourers, have been working in the Refinery for so many years in the past ranging between ten to fifteen years but they are denied wages and other benefits as also other beneficial service conditions enjoyed by workmen who are regular employees of the Refinery.
Claiming that they had a right to be treated at par with regular employees, the Union filed Writ Petition No. 2876 of 1985 under Article 32 of the Constitution of India in this Court which was disposed of on January 16, 1986 by directing the Central Government to refer to the Industrial Tribunal for adjudication the following questions: 1.
Whether, in law, the petitioners and the 48 workmen whose services have been terminated are employees of the Indian Oil Corporation, Mathura Refinery Project, Mathura? 2.
Whether the termination of the services of 48 workmen was justified? and 3.
To what relief are the workmen entitled?" Status quo was ordered to be maintained and the services of the workmen were ordered not to be terminated.
At that time, the services of 48 workmen alone were involved but as is evident the adjudication of the Tribunal would have affected others too.
Pursuant to the order of this Court, the Central Government referred and the Industrial Tribunal decided the above referred questions holding that the workmen were not employees of the Refinery and were rather the employees of the contractors.
With regard to the termination of the services of the workmen and to what relief they were entitled, the Tribunal, after answering the questions against the Union and in favour of the Refinery, suggested the following steps in the interest of Industrial harmony: (i) Though the Union should have pressed their demand for abolition of the contract labour system in the Refinery to the Central Advisory Board constituted under the Act, and even though it had been pursuing its remedies before this Court and the Tribunal, suggestions were made to the Refinery to approach 471 the Advisory Board to make a study with regard to the desirability of continuance of the contract labour system in the Refinery.
(ii) Till the Central Advisory Board makes its recommendations and the action is taken, the management of the Refinery to ensure that the contract labour is paid at least the minimum of the pay scale of its regular employees performing the same or similar duties as the workmen of the contract labour and further that the workmen among the contract labour who have put in 5 years or more of work at the Mathura Refinery shall be continued to be employed in the same work even if there is a change in the contractor and such workmen shall not be terminated except as a punishment inflicted by way of disciplinary action for misconduct, etc., voluntary retirement or retirement on reaching the age of superannuation (which may be taken as the superannuation age for the I.O.C. employees) or on ground of continuous ill health.
(iii) Refinery to give preference to those workmen in its employment by waiving the requirement of age and other qualifications wherever possible and it may also consider the creation of a benevolent fund for the contract labour wherein it may make a lumpsum contribution initially and then make equivalent or even more contribution to match the contribution made by the workmen of the contract labour.
Having suggested these, the Tribunal has clarified that these ameliorative steps, if taken by the Refinery, shall not be taken to mean that the contract labour has become the direct employees of the Refinery.
Learned counsel for the appellant says that though the above suggestions, which have the colour of directions, are in accord with the decision of this Court in 13HEL workers Association, Hardwar and Others etc.
vs Union of India and Others, [ ; yet they fall short of the expectancies of the Union and in particular to the wide sweep of the principles laid down by this Court in Dharwad Distt P.W.D. Literate Daily Wage Employees Association and Others vs State of Karnataka and Others, [ ; and prayed for directions such as those given to the State of Karnataka in the Dharwad 's case (supra).
The argument of the learned counsel has barely to be noted and 472 rejected.
The Tribunal has given to the appellant Union the maximum which could be given in the facts and circumstances of the, case.
In Dharwad 's case (supra), the State of Karnataka had itself come out with a scheme to absorb the casual workers in regular government service in a phased manner and though it did not satisfy all concerned, yet it was given a workable final shape.
This Court observed as follows: "Though the, scheme so finalised is not the ideal one but it is the obligation of the court to individualise justice to suit a given situation in a set of facts that are placed before it.
Under the scheme of the Constitution the purse remains in the hands of the executive.
The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met.
The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer.
Therefore, unduly burdening the State for implementing the constitutional obligation forth with would create problems which the State may not be able to handle.
Therefore, the directions have been made with judicious restraint.
" Those casual workers were under the employment of the State and the State came out with a scheme for phased absorption and a graded financial responsibility.
In the instant case before us, the contract labourers are not, and have also not been found to be, having a direct connection with the Refinery, even though it is a State for the purpose of enforcement of fundamental rights.
The suggestions/directions given by the Tribunal, appear to us to be the only relief which was due to the appellant and its members in the given situation and circumstances.
Therefore, the impugned Award of the Tribunal cannot be improved upon.
Finding no merit in the appeal, we dismiss the same.
No costs.
T.N.A. Appeal dismissed.
|
The appellant Union, representing about 900 casual labourers falling under the Contract Labour (Regulation and Abolition) Act, 1971 some of whom formed Co operative societies and entered into contracts with the respondent refinery while others worked for contractors who had contracts with the refinery, filed a writ petition in this court claiming parity in wages and service conditions with the regular workmen of the respondent refinery.
This Court disposed the petition by directing the Central Government to refer to the Industrial Tribunal for adjudication the questions whether the petitioners and some of the workmen whose services were terminated were employees of the refinery; whether their termination was justified and to what relief they were entitled to.
The Government referred and the Tribunal decided the questions against the appellant union by holding that the labourers were employees of the contractors and not of the refinery and their termination was justified.
But the Tribunal gave certain directions by way of relief for consideration by the Advisory Board about the desirability of continuance of the contract system in the refinery, for providing minimum pay of scale of regular employees to the contract labour and giving them preference in the regular employment.
Against the award of the Industrial Tribunal, the Union filed an appeal in this Court praying for directions to the refinery to absorb and regularise the casual labourers in a phased manner.
Dismissing the appeal, this Court, 469 HELD:The contract laboures are not, and have also not been found to be, having a direct connection with the Refinery, even though it is a State for the purpose of enforcement of fundamental rights.
The directions given by the Tribunal was the only relief which was due to the appellant_union and its members.
Hence the Tribunal has given to the appellant union the maximum which could be given in the facts and circumstances of the case.
Therefore, the impugned Award of the Tribunal cannot be improved upon.
[472E F] BHEL Workers Association, Hardwar and Ors.
vs Union of India and Ors.
, ; , referred to.
Dharwad Distt.
P.W.D. Literate Daily Wage Employees Association and Ors.
V. State Of Karnataka and Ors.
, ; , distinguished.
|
tition (CRL.) No. 1218 of 1990.
(Under Article 32 of the Constitution of India).
John Joseph and T.G.N. Nair for the Petitioner.
A.D. Giri, Solicitor General, Ashok Bhan, Ms. A. Subhashini and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by VERMA J.
This writ petition under Article 32 of the Constitution of India is by the mother of the detenu Noor alias Babu to quash the detention order F. No. 801/1/90 PITNDPS dated 25.1.1990 passed under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short 'PIT 'NDPS Act ') and the order of confirmation F. No. 801/1/90 PITNDPS dated 24.4.1990 'passed under Section 9(f) read with Section 10(2) of the PITNDPS Act, by the Central Government directing detention of the detenu for a period of two yeare w.e.f. 30.1.1990.
The only argument advanced in support of this writ petition is infraction of Article 22(5) of the Con 424 stitution of India.
The facts material for the point raised are stated hereafter.
The detenu was arrested from his family estate at Kochuveetil House, Kuthugal, Udumpanchola Taluk, Idikki District, Kerala on 19.10 1989 on the accusation that he and his brothers were involved in extensive illicit cultivation of ganja plants (Cannabis Sativa) in violation of the provisions of (in short 'NDPS Act '), He was produced before the Judicial Magistrate who rejected his bail application.
The Sessions Judge also rejected the bail application once but late, granted conditional bail.
Thereafter, the detention order dated 25.1.1990 was served on the detenu on 30.1.1990.
It was stated therein that even though prosecution of the detenu was likely to be initiated under the NDPS Act, there was likelihood of the detenu indulging in cultivation and production of narcotic drugs (ganja) on the detenu being released on bail on account of which there was compelling necessity to detain him under the PITNDPS Act.
The detenu was informed that he had a right to make representation to the detaining authority, Central Government and the Central Advisory Board against the detention order.
The mode of address of the representation to the Central Government and the Central Advisory Board was also indicated in the detention order along with the grounds of detention in accordance with Article 22(5) of the Constitution of India.
The detenu 's case was referred by the Central Government to the Central Advisory Board on 2.3.1990.
During pendency of the reference before the Advisory Board, the detenu made his representation on 24.3.1990 and addressed it to the Advisory Board.
The Advisory Board considered the reference relating to the detenu made by the Central Government and also the detenu 's representation submitted to it.
The Advisory Board, gave the opinion that there was sufficient cause to justify his preventive detention.
The Central Government then made the order dated 24.4.1990 confirming his detention and directed that the detenu Noor alias Babu be detained for a period of two years w.e.f. 30.1.1990.
It is admitted that the Advisory Board considered the detenu 's representation before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu.
It is also admitted that the Central Government made the order of confirmation dated 24.4.1990 on receipt of the opinion of the Advisory Board, but there was no independent consideration of the detenu 's representation by the Central Government at any time.
In the counter affidavit filed initially by Shri A.K. Roy, Under Secretary to 425 the Government of India, this fact was not clearly stated and, therefore, we directed an additional affidavit to be filed.
In the additional affidavit filed by Shri A.K. Roy, it has not been disputed that the Central Government did not at any time consider independently the detenu 's representation addressed to and given to the Advisory Board.
In the additional affidavit, the stand of the Central Government in this behalf has been stated thus: ".
Since the detenu in the present case has not made any representation to the Central Government, the assertion in para 2 of the grounds of petition that no opportunity was afforded by the Central Government to the said detenu is vehemently denied.
The question of consideration of a representation and providing of an opportunity would only arise when a representation is duly made to the Central Government.
" On the above facts, the question is: Whether there has been any infraction of the guarantee under Article 22(5) of the Constitution as a result of Central Government 's omission to consider the detenu 's representation independent of its consideration by the Advisory Board? The Central Government 's stand is that the detenu 's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government.
The Constitutional mandate in Article 22(5) was considered recently by a Constitution Bench in K.M. Abdulla Kunhi and B.L. Abdul Khader vs Union of India and Ors., State of Karnataka and Ors., JT , in view of some conflict in earlier decisions of this Court regarding the detaining authority 's obligation to consider the detenu 's representation independently of the Advisory Board 's duty in this behalf.
The Constitution Bench held as follows: "It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation.
Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government 's obligation to refer the 426 case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government.
It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation.
It has to consider the representation on its own without being influenced by any such view of the Board.
The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references.
The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law.
The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case (sic) for detention.
The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government.
The right to have the representation considered by the Government, is safeguarded by cl.
(5) of Article 22 and it is independent of the consideration of the detenu 's case and his representation by the Advisory Board under cl.
(4) of article 22 read with Section 8(c) of the Act.
(See: Sk.
Abdul Karim & Ors.
vs State of West Bengal, [ ; ; Pankaj Kumar Chakrabarty & Ors.
vs State of West Bengal, [1970]1 SCR 543; Shayamal Chakraborty vs The Commissioner of Police Calcutta and Anr., [ ; ; B. Sundar Rao and Ors.
vs State of Orissa, [ 1; John Martin vs State of West Bengal, 1 1; section K. Sekawat vs Stale of West Bengal; , and Haradhan Saha & Anr.
vs State of IVest Bengal and Ors.
, ; (emphasis supplied) It is thus clear that the obligation of the Government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government.
Consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board.
In short, the detenu 's right to have the representation considered by the Government under Article 22(5) is independent of the consideration of the detenu 's case and his representation by the Advi 427 sory Board.
This position in law is also not disputed before us.
The learned Solicitor General, however, contended that in the present case there being no representation addressed to the Central Government, the only representation made by the detenu being addressed to the Advisory Board during pendency of the reference, there was in fact no representation of the detenu giving rise to the Central Government 's obligation to consider the same.
The question is: Whether this contention can be accepted in the face of the clear mandate in Article 22(5) of the Constitution? It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Article 22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion.
In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board.
The question, therefore, is: Whether one of the requirement of consideration by Government is dispensed with when the detenu 's representation instead of being addressed to the Government or also to the Government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the Government? On principle, we find it difficult to uphold the teamed Solicitor General 's contention which would reduce the duty of the detaining authority from one of substance to mere form.
The nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty.
It is more so since the liberty involved is of a person in detention and not of a free agent.
Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible.
Article 22(5) speaks of the detenu 's 'representation against the order ', and imposes the obligation on the detaining authority.
Thus, any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detain 428 ing authority.
Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board 's role being merely advisory in nature without the power to make any order itself.
It is not as if there are two separate and distinct provisions for representation to two different authorities viz. the detaining authority and the Advisory Board, both having independent power to act on its own.
It being settled that the aforesaid dual obligation of consideration of the detenu 's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it.
It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General.
The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both.
The mode of address is only a matter of form which cannot whittle down the requirement of the Constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.
We are, therefore, unable to accept the only argument advanced by the learned Solicitor General to support the detention.
On this conclusion, it is not disputed that there has been a breach by the Central Government of its duty under Article 22(5) of the Constitution of India to consider and decide the representation independently of the Advisory Board 's opinion.
The order of detention dated 25.1.1990 as well as the order dated 24.4.1990 of its confirmation passed by the Central Government are, therefore, quashed.
This shall not, however, affect the detenu 's prosecution for the alleged offence and it shall also not be construed as a direction to release him in case he is in custody as a result of refusal of bail.
The writ petition is allowed, accordingly.
G.N. Petition allowed.
|
The petitioner 's son was arrested on 19.10 1989 on the accusation that he and his brothers were involved in extensive illicit cultivation of ganja plants in violation of the provisions of (NDPS Act).
The Magistrate before whom he was Produced, rejected the bail application.
The Sessions Court granted conditional bail.
The detention order dated 25.1.1990 was served on the detenu on 30.1.1990.
The order stated that though prosecution was likely to be initiated under the NDPS Act, there was every likelihood of his continuing the cultivation of ganja plants and thus there was a compelling reason to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
The detenu was informed of his right to make a representation to the detaining authority, Central Government and the Central Advisory Board against the detention order.
The mode of representation was also indicated along with the grounds of detention, in accordance with Article 22(5) of the Constitution of India.
In accordance with the procedure, the Central Government referred the case to the Central Advisory Board.
During the pendency of the reference, the detenu made a representation to the Advisory Board.
The Advisory Board considered the reference along with the detenu 's 422 representation and came to the conclusion that there was sufficient cause to justify his preventive detention.
Thereafter, the Central Government made an order dated 24.4.1990 confirming its earlier order and directing his detention for a period of two years.
In the present Writ Petition, the mother of the detenu prayed for quashing of the detention order contending that there has been infraction of the guarantee under Article 22(5) of the Constitution as a result of the Central Government 's omission to consider the representation of the detenu, independent of its consideration by the Advisory Board.
Petitioner also challenged the stand of the Central Government that there was no obligation on it to consider the representation of the detenu independently since the same was addressed to the Advisory Board and not to the Central Government.
Allowing the Writ Petition, this Court, HELD: 1.
The obligation of the Government to consider the representation is different and in addition to the obligation of the Advisory Board to consider it at the time of hearing the reference before giving its opinion to the Government.
Consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board.
The detenu 's right to have the representation considered by the Government under Article 22(5) of the Constitution is independent of the consideration of the detenu 's case and his representation by the Advisory Board.
[426G H] K.M. Abdulla Kunhi and B.L. Abdul Khader vs Union of India and Ors.
, State of Karnataka and Ors., JT ; relied on.
Any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining authority.
The order of detention is by the detaining authority and so also the order of its revocation of the representation is accepted, the Advisory Board 's role being merely advisory in nature without the power to make any order itself.
It is not as if there are two separate and distinct provisions for representation to two different authorities viz., the detaining authority and the Advisory Board, both having independent power to act on its own.
(427G H; 428A B] 423 3.
It being settled that this dual obligation flows from article 22(5) when only one representation is made and addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it.
So long as there is a representation made by the detenu against the order of detention, the dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both.
The mode of address is only a matter of form which cannot whittle down the requirement of the Constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.
[428B El 4.
In the instant case, there has been a breach by the Central Government of its duty under Article 22(5) of the Constitution to consider and decide the representation independently of the Advisory Board 's opinion.
The order of detention dated 25.1.1990 as well as the order dated 24.4.1990 of its confirmation passed by the Central Government are quashed.
[428F G]
|
Civil Appeal No. 740 of 1978.
From the Judgment and Decree dated 18.3.1975 of the Andhra Pradesh High Court in C.C.C.A. No. 106 of 1969.
G.A. Shah, V.J. Francis and N.M. Popli for the Appellant.
S.B. Bhasme, P.K. Pillai and Dilip Pillai for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Although the leave granted by this Court is limited to the question whether the plaintiff is entitled to an amount of Rs.75,000 which according to him he had actually advanced and the respondents had received for the purpose of prosecuting their litigation, and, therefore, the issue to be answered lies within a narrow 331 compass, it is necessary to state the relevant facts briefly to understand correctly the significance of the question to be answered.
Nawab Salar Jung III, a celebrity of the erstwhile State of Hyderabad expired on March 2, 1949 leaving behind him no issue but a vast estate.
As was expected, several persons came forward claiming to be his heirs, and among them were Sajjid Yar Jung and Turab Yar Jung who claimed to be his first cousins.
The Nizam by a notification of May 9, 1949, appointed a Committee to administer the estate of the late Nawab Salar Jung.
On the merger of the Hyderabad State, the Central Government by the , continued the Committee and also provided that no suit or other legal proceeding for the enforcement of any right or remedy in respect of any asset, shall be instituted in any court by any person other than the Committee except with the previous consent of the Central Government.
In the meanwhile, on May 31, 1949, the Nizam had already appointed a Commission to enquire into the question of succession to the estate, and one of the questions referred to the Commission was whether the Jagir of the late Nawab Salar Jung escheated to the Government and another was the ascertainment of his heirs.
The Commission was unable to proceed with the inquiry as some of the claimants filed a writ petition in the High Court of Andhra Pradesh challenging the jurisdiction of the Commission to enquire into the question of succession.
The High Court, by its decision of September 23, 1952 held that the Commission was not the proper forum for determining the question of succession and directed that the management of the estate should remain with the Committee until the question was settled by a Civil Court.
The question was ultimately settled by compromise between the various claimants including the Government.
The compromise was incorporated in a decree dated March 5, 1959 passed in a suit being Suit No. O.S. 13/58 which was filed by some of the claimants.
The present proceedings are an offshoot of the said suit.
Sajjid Yar Jung who claimed to be one of the first cousins of the late Nawab Salar Jung did not have the wherewithal to establish his claim to a share in the estate.
He approached the plaintiff who was a businessman of Bombay for financial help to enable him to establish his claim.
According to the plaintiff, he agreed to do so and Sajjid Yar Jung agreed to return all amounts to be advanced to him from time to time and also to give the plaintiff one anna share in the amount that 332 would be received by him from the estate.
The agreement was executed in writing on June 27, 1952 which is the subject matter of the present proceedings.
Pursuant to this agreement Sajjid Yar Jung and his agents drew large amounts from the plaintiff from time to time, totalling to about Rs.75,000.
Sajjid Yar Jung expired before the plaintiff received his share of the amount as per the agreement but after Sajjid Yar Jung successfully established his claim to the share in the estate.
According to the plaintiff, the amount due to Saijid Yar Jung from the estate was about Rs.60 lakhs and hence he claimed Rs.3 lakhs as his share (calculated at one anna in a rupee) in addition to the return of the sums advanced by him which as stated above was Rs.75,000.
The plaintiff, therefore, filed the present suit against the heirs of Sajjid Yar Jung for accounts and for administration of his estate and for distribution of the amount among the plaintiff and the defendants.
He also joined the receiver of the estate of Nawab Salar Jung Bahadur as one of the defendants to the suit.
The heirs of the late Nawab Sajjid Yar Jung (hereinafter referred to as "Nawab") contested the suit and denied that the plaintiff had advanced any amounts to the Nawab.
They also raised other contentions including the contentions that the suit was barred by limitation and that the agreement of June 27, 1952 was unenforceable in law as it was in the nature of a champerty deal which was opposed to public policy and forbidden by law.
The City Civil Court where the suit was filed found that the agreement was genuine, that it was admissible in evidence, that the amounts were advanced by the plaintiff to the Nawab and that the suit was not barred by limitation.
However, the Court found that the agreement was opposed to public policy as the object of the agreement was that the plaintiff should wield his influence with Central and State Ministers to have the Nawab recognised as the heir to the estate in return for his being given one anna share in the amount to be received by the Nawab.
The Court, therefore, held that the agreement in question was not enforceable.
The Court also held that even the amounts actually advanced by the plaintiff and received by the Nawab could not be recovered by the plaintiff.
Accordingly, the Court dismissed the suit with costs.
The plaintiff preferred an appeal to the High Court.
The Division Bench of the High Court held that the appeal had abated against all the respondents on account of the failure of the plaintiff appellant to bring on record the heirs of one of the respondents, viz., Askar Nawab Jung who had died pending the appeal.
On 333 merits, the Bench also held that the agreement was against the public policy.
The Court further held that the agreement was one whole agreement and hence the plaintiff was not entitled to recover even the amount of Rs.75,000 which was actually advanced by him to the Nawab for prosecuting the litigation.
It is this decision which is challenged before us.
As stated earlier, leave has been granted only in respect of the said amount of Rs.75,000 and, therefore, we are concerned in the present appeal only with the question as to whether the conclusion arrived at by the High Court, i.e., that the agreement is opposed to public policy and the actual advance of Rs.75,000 was a part of the whole agreement and was, therefore, also tainted by the vice of being contrary to public policy is correct.
That the amount of Rs.75,000 was advanced by the plaintiff to the Nawab for prosecuting his claim as a sharer in the estate, is not disputed.
In fact, the Nawab had to approach the plaintiff and had to enter into the agreement in question for the express purpose of successfully prosecuting his claim.
The plaintiff cannot also contend that he had agreed to and did advance the said amount of Rs.75,000 only because he wanted and expected the Nawab to be successful in the prosecution of his claim.
The advance was not a friendly loan or without consideration.
The agreement itself stipulated that on the successful establishment of the claim, the Nawab would not only return the said advance but would also pay to the plaintiff consideration for the said advance.
That consideration was agreed to be at the rate of one anna in a rupee.
It is, therefore, apparent on the face of the record that the advance and the share in the estate, were a part of the same contract one as a consideration for the other.
The two stand together and none can stand without the other.
Hence, I am not impressed by the contention advanced by Shri Shah for the appellant that the amount of Rs.75,000 which was advanced by the appellant can be separated from the other agreement or could be treated differently.
I am in agreement with the High Court that the agreement has to be treated as a whole and the two parts, viz., the advance and the consideration for the same cannot be separated from each other.
The next question is whether the advance in question was opposed to public policy.
On this question, Shri Shah took us through the law on the subject, and contended that both the City Civil Court as well as the High Court have created a new head of public policy to declare the agreement as void, although according to the relevant 334 statutory Provisions as well as the decisions of the Court, the agreement is not void.
In the first instance, he referred us to the provisions of Sections 23, 65, 69, 70 and Part (ii) of Section 73 of the Indian Contract Act.
Section 23 states that the consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases the consideration or object of an agreement is said to be unlawful.
Every agreement of which the object or consideration is unlawful is void.
He then pointed out to us that the specific rule of English law against maintenance and champerty have not been adopted in India and a champertous agreement is not per se void in this country.
He contended that before a champertous agreement is held to be void, it must be shown that it is against public policy or against justice, equity and good conscience.
He contended in this connection that the Nawab admittedly did not have sufficient finance to prosecute his claim though, he had a valid claim as shown by the result of the litigation in that behalf.
The plaintiff, therefore, did not do anything wrong in advancing the amount in question to him to enable him to establish his claim successfully since the Nawab could not have repaid the amount unless he got a share in the estate.
It was a legitimate exercise to reduce the agreement to writing and to stipulate therein that the amount should be repaid along with a share in the estate when the Nawab 's claim was established.
The share in the estate being only one anna in a rupee could not also be said to be on the high side and conscionable.
The High Court has given a finding in that behalf in favour of the appellant.
The High Court has, however, held against the appellant only on the ground that the agreement was against public policy.
He strenuously urged that if the champertous nature of the agreement is ignored which it is legitimate to do so in this country, there is no other ground of public policy on which the agreement can be struck down.
In this connection, he referred us to the decision of this Court in the matter of Mr. 'G ', a Senior Advocate of the Supreme Court, where it is reiterated that a champertous contract would be legally unobjectionable if no lawyer was involved and that the rigid English rules of Champerty and Maintenance do not apply in India.
In that case, he pointed out to us that the agreement was held unenforceable because it was agreement between a lawyer and his client and it amounted to professional misconduct.
However, this Court has also observed there that if such an agreement had been 335 between a third party "it would have been legally enforceable and good.
It may even be that it is good in law and enforceable as it stands though we do not so decide because the question does not arise; but that was argued and for the sake of argument even that can be conceded.
It follows that there is nothing morally wrong, nothing to shock the conscience, nothing against public policy and public morals in such a transaction per se, that is to say, when a legal practitioner is not concerned.
But that is not the question we have to consider.
However much these agreements may be open to other men what we have to decide is whether they are permissible under the rigid rules of conduct enjoyed by the members of a very close professional preserve so that their integrity, dignity and honour may be placed above the breath of scandal".
His second leg of the argument rested on the other provisions of the Indian Contract Act to which I have made reference above.
He contended that even assuming that it was an agreement to receive consideration a share in the claim that was to be established by the Nawab, it was not against public policy.
He contended that the amount in question was admittedly advanced and an advantage of it was taken by the Nawab to establish his claim.
He had, therefore, to return the same to the appellant.
In this connection, he referred to us to the other provisions of the Indian Contract Act to which I have made a reference earlier.
Section 65 states that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract, is bound to restore it, or to make compensation for it, to the person from whom he received it.
Section 69 states that a person who is interested in the payment of moneys which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.
Section 70 declares that where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit therefore, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
Part (ii) of Section 73 states that when an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it, is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract.
Shri Shah also referred us to the provisions of Section 84 of the which reads as follows: 336 "84.
Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.
Relying on these statutory provisions as well as the judicial decisions, he contended firstly that assuming that the agreement was a champertous one, it was neither immoral nor against public policy, and secondly even de hors the agreement, the appellant is entitled to the said advance of Rs.75,000 under Section 70 of the Indian Contract Act.
The High Court referred to the evidence on record in appeal which had an intimate bearing on the nature and the purpose of the agreement in question and came to the following conclusions.
The Court held that the plaintiff appellant was approached by the Nawab because being a businessman of eminence, he was highly influencial.
He had an access to the ministers and other worthies in the Government.
He was in a position to secure to the Nawab his claim by wielding his influence.
The Nawab knew about it and the plaintiff was also confident about it.
It 'was immaterial that those whom he had approached were men of high repute and great integrity of character.
The fact that because of his accessibility he could get things done through them or could make use of his other standing with them to deliver goods to the Nawab, was enough to taint the entire agreement with the vice of introducing corruption in public life.
The High Court also found that the advance which was made was in the nature of an investment to share the booty.
There was no reason for the plaintiff who was a total stranger to the Nawab to undertake the financing in question which was in those days on a considerably high scale.
No person who was not confident of delivering the goods would have embarked on financing on such a liberal scale.
The plaintiff admittedly was a businessman who knew the value of each pie he was spending.
He was doing it as a fruitful investment with sure returns.
That is evident from the terms of the contract themselves since both the advance and the consideration for which the advances were made form part of one integral contract.
On these facts which are on record, the High Court came to the conclusion that the parties had entered into the agreement in question with the avowed purpose that the plaintiff would use his then prevailing influence with the worthies in the 337 Government to secure the gains for the Nawab.
The Court On this evidence came to the conclusion that the agreement was nothing but one obviously made to lend services as a "go between" or a "carrier" for commission.
This being so, it was against public interest and detrimental to the health of body politic.
The High Court further repelled the contention that either the City Civil Court or it was evolving a new head of public policy by referring to a decision of this Court in Ghurelal Parakh vs Mahadeodas Maiya & Ors., AIR 1959 SC 781=(1959) Suppl.
2 SCR 406 and the decisions of the English Court and to opinions of the jurists/experts in treatises and essays on the subject of public policy.
The Court also pointed out that this was by no means a new head of public policy and it can come under the head "agreements tending to injure the public" as mentioned at page 325 of Anson 's Law of Contract (23rd ed).
I am in respectful agreement with the conclusion arrived at by the High Court.
It cannot be disputed that a contract which has a tendency to injure public interests or public welfare is one against public policy.
What constitutes an injury to public interests or welfare would depend upon the times and climes.
The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of the injury.
It is contrary to the concept of public policy to contend that it is immatable, since it must vary with the varying needs of the society.
What those needs are would depend upon the consensus value judgments of the enlightened section of the society.
These values may sometimes get incorporated in the legislation, but sometimes they may not.
The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities.
It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna.
When courts perform this function undoubtedly they legislate judicially.
But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society.
Or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society.
So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them, their role in this respect has to be welcomed.
It is true that as observed by Burrough, J. in Richardson vs Mellish, [ ; at 252 public policy is "an unruly horse and 338 dangerous to ride" and as observed by Cave, J. in re Mirams, [189] 1 QB 594 at 595 it is "a branch of the law, however, which certainly should not be extended, as judges are more to be trusted as interpreters of the law than as expounders of what is called public policy".
But as observed by Prof. Winfield in his article 'Public Policy in the English Common Law ' [1928]42 Harv.
L. Rev. 76, 91]: "Some judges appear to have thought it [the unruly horse of public policy] more like a tiger, and refused to mount it at all perhaps because they feared the fate of the young lady of Riga.
Others have regarded it like Balaam 's ass which would carry its rider nowhere.
But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community.
" All courts are at one time or the other felt the need to bridge the gap between what is and what is intended to be.
The courts cannot in such circumstances shirk from their duty and refuse to fill the gap.
In performing this duty they do not foist upon the society their value judgments.
They respect and accept the prevailing values, and do what is expected of them.
The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good.
The contract such as the present one which is found by the City Civil Court as well as the High Court to have been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of the late Nawab was obviously a "carrier" contract.
To enforce such a contract although its tendencies to injure public weal is manifest is not only to abdicate one 's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law.
To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications.
A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law strikes at its very root.
When the Court discountenances such practice, it only safeguards the foundation of the society.
Even assuming, therefore, that the Court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired.
339 The appeal is, therefore, dismissed.
In the circumstances of the case, there will be no order as to costs.
FATHIMA BEEVI, J. I have had the advantage of perusing the judgment prepared by my teamed brother, Sawant, J.
I agree with him that the appeal must fail.
I wish to say a few words.
The only point that arises for decision in the appeal is whether an amount of Rs.75,000 which the plaintiff claims to have advanced, is recoverable from the respondents.
The relevant facts have been stated by my learned brother and it is not necessary to repeat the same.
The City Civil Court found that the agreement on the basis of which the plaintiff claimed relief was opposed to public policy.
The object of the agreement according to the trial court was that the plaintiff should wield his influence with Central and State Ministers to have Sajjid Yar Jung recognised as the heir of late Nawab Salar Jung in return for his being given one anna share in the assets to be received by Sajjid Yar Jung from the estate of late Nawab Salar Jung.
The High Court has confirmed that under the agreement the plaintiff was to promote the cause of Sajjid Yar Jung in his being recognised as heir of the Nawab Salar Jung and for the help thus rendered to receive a share of one anna in a rupee out of the assets obtained.
The plaintiff appears to have advanced an amount of Rs.75,000 in promoting the cause of Sajjid Yar Jung as agreed upon.
The help in promoting the cause was much more than mere financing.
On the evidence the High Court found that the help Sajjid Yar Jung wanted from the plaintiff was to bring to bear his influence with the Central and State Ministers and the request for financial help was secondary to the request to represent the cause with the use of influence.
The High Court affirmed that the object of agreement was to influence the Central and State Ministers and to advance and expand all amounts necessary in that connection.
In the face of the concurrent findings with which we agree, I have no doubt in our mind that the contract relating to the payment of the amount is not severable from the agreement to promote the cause of Sajjid Yar Jung by wielding the influence the plaintiff had.
Every agreement of which the object or consideration is unlawful is void.
The consideration or object of an agreement is unlawful when the court regards it as opposed to public policy.
If anything is done against the public law or public policy that would be illegal in as much as the interest of the public would suffer in case a contract against public policy is permitted to stand.
Public policy is a principle of judicial 340 interpretation founded on the current needs of the community.
The law relating to public policy cannot remain immutable.
It must change with passage of time.
A bargain whereby one party is to assist another in recovering property and is to share in the proceeds of the action and such assistance is by using the influence with the administration, irrespective of the fact that the persons intended to be influenced are not amenable to such influence is against protection and promotion of public welfare.
It is opposed to public policy.
In this view, we would hold that the plaintiff cannot enforce the agreement to recover the amount from the respondents.
ORDER The appeal is, therefore, dismissed with no order as to costs.
R. section section Appeal dismissed.
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Nawab Salar Jung III expired on March 2, 1949 leaving behind him no issue but a vast estate.
Several persons came forward to be his heirs.
One of the claimants, Sajjid Yar Jung, did not have the wherewithal to establish his claim to a share in the estate.
He approached the plaintiff for financial help.
An agreement was executed between them according to which Sajjid Yar Jung agreed to return all amounts to be advanced by the plaintiff and in addition to give him one anna share in the amount that would be received by Sajjid Yar Jung from the estate.
Sajjid Yar Jung borrowed a total sum of Rs 75,000 under the agreement.
The dispute was ultimately settled in the Civil Court by compromise between the various claimants.
According to the plaintiff, the amount due to Sajjid Yar Jung was about Rs.60 Lakhs and hence the plaintiff claimed Rs.3 lakh as one anna share in addition to the sum advanced, i.e. Rs.75,000.
The plaintiff filed the present suit for the recovery of the total amount.
The City Civil Court inter alia found that the agreement was opposed to public policy as the object of the agreement was that the plaintiff should wield his influence with Central and State Ministers to have the Nawab recognised as the heir to the estate in return for his being given one anna share in the amount to be received by the Nawab.
The Court, therefore, held that the agreement in question was not enforceable, and even the amounts actually advanced could not be recovered by the plaintiff.
In the appeal, the Division Bench of the High Court held that the agreement was one whole agreement and hence the plaintiff was not entitled to recover even the amount of Rs.75,000 which was actually advanced.
The Division Bench also held that the agreement was public policy.
328 This Court granted special leave only in respect of the said amount of Rs.75,000.
Before this Court it was contended on behalf of the plaintiff that (i) the amount of Rs.75,000 could be separated from the other agreement or could be treated differently; (ii) if the champertous nature of the agreement was ignored which it was legitimate to do so in this country, there was no other ground of public policy on which the agreement could be struck down; (iii) assuming that the agreement was a champertous one, it was neither immoral nor against public policy, and even de hors the agreement, the appellant was entitled to the said advance of Rs.75,000 under section 70 of the Indian Contract Act.
It was further urged that both the City Civil Court as well as the High Court had created a new head of public policy to declare the agreement as void, although according to the relevant statutory provisions as well as the decisions of the court, the agreement was not void.
Dismissing the appeal, this Court, HELD: Per Sawant, J. (1) It is apparent on the face of the record that the advance and the share in the estate were parts of the same contract one as a consideration for the other.
The two stand together and none can stand without the other.
[333F] (2) A contract which has a tendency to injure public interests or public welfare is one against public policy.
[337D] (3) What constitutes an injury to public interests or welfare would depend upon the times and climes.
The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of the injury.
It is contrary to the concept of pubic policy to contend that it is immutable, since it must vary with the varying needs of the society.
What those needs are would depend upon the consensus value judgments of the enlightened section of the society.
These values may sometimes get incorporated in the legislation, but sometimes they may not.
[337E] (4) The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities.
[337E F] 329 (5) It is not only necessary but obligatory on the courts to step in to fill the lacluna.
When courts perform this function undoubtedly they legislate judicially.
But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society.
[337F] (6) So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them.
their role in this respect has to be welcomed.
[337G] Ghurelal Parakh vs Mahadeodas Maiya & Ors., [1959] Suppl.
2 S.C.R. 406; Richardson vs Mellish, ; ; In re Mirams, , referred to.
(7) All courts are at one time or the other felt the need to bridge the gap between what is and what is intended to be.
The courts cannot in such circumstances shirk from their duty and refuse to fill the gap.
In performing this duty they do not foist upon the society their value judgments.
They respect and accept the prevailling values, and do what is expected of them.
[338D] (8) The courts will fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or an action of an individual which is certain to subvert the societal goals and endanger the public good.
[338E] (9) The contract in the present case had been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of the late Nawab and was obviously a "carrier" contract.
To enforce such a contract although its tendencies to injure public weal are manifest is not only to abdicate one 's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law.
To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications.
[338F G] In the matter of Mr. 'G ', a Senior Advocate of the Supreme Court, , referred to.
(10) A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law at its very root.
When the Court discountenances such practice, it only safeguards 330 the foundation of the society.
Even assuming that the Court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired.
[338G H] Per Fathima Beevi, J. (1) There is no doubt that the contract relating to the payment of the amount is not severable from the agreement to promote the cause of Sajjid Yar Jung by wielding the influence the plaintiff had.
[339G] (2) Every agreement of which the object or consideration is unlawful is void.
The consideration or object of an agreement is unlawful when the court regards it as opposed to public policy.
[339G] (3) Public Policy is a principle of judicial interpretation founded on the current needs of the community.
The law relating to public policy cannot remain immutable.
It must change with passage of time.
[339H 340A] (4) A bargain whereby one party is to assist another in recovering property and is to share in the proceeds of the action and such assistance is by using the influence with the administration irrespective of the fact that the persons intended to be influenced are not amenable to such influence is against protection and promotion of public welfare.
It is opposed to public policy.
[340B]
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Civil Appeal No. 334 of 1978.
From the Judgment and Order dated 14.2.1977 of the Punjab and Haryana High Court in Civil Writ Petition No. 1860 of 1975.
WITH Civil Appeal No. 833 of 1977.
414 From the Judgment and Order dated 14 2.1977 of the Punjab and Haryana High Court in Civil Writ Petition No. 1172 of 1974.
Anil Dev Singh, P.P. Rao, O.P. Sharma, Janinder Lal, N.S. Das Bahl, R.C. Gubrela, R.S. Suri, R.S. Sodhi (NP) and M.S. Dhillon (NP) for the appearing parties.
The Judgment of the Court was delivered by PUNCHHI, J.
These two allied appeals arising from a common judgment of the Punjab and Haryana High Court at Chandigarh, in Civil Writ Petitions Nos.
1172 of 1974 and 1860 of 1975, on grant of special leave, can appropriately be disposed of by a common judgment.
In order to recruit 71 officers in the Punjab Civil Services (Executive Branch) and Allied services, the Punjab Public Service Commission, at the behest of the State of Punjab, held a competitive examination in December, 1972.
As advertised 12 vacancies were for the Punjab Civil Services and the remaining for Allied Services.
The applying candidates as per the requirement of the Punjab Civil Service (Executive Branch) Rules, 1930 (for short the Rules) specified the posts in order of preference in their respective applications.
The result of those who were declared qualified was published in the daily Tribune dated September 21, 1973.
Out of the 71 candidates declared successful Shri V.M. Bansal, the appellant in Civil Appeal No. 833 of 1977 was declared successful for a post in the Punjab Civil Service and Shri Jaswant Singh Nerwal, the appellant in Civil Appeal No. 334 of 1978 for the post of Tehsildar in the Allied services.
Some of the unsuccessful candidates challenged this selection in its entirety on various grounds before the High Court through Civil Writ Petition No. 1722 of 1974.
On the other hand challenge in Civil Writ Petition No. 1860 of 1975 was made by Nerwal against Bansal for the latter having been allowed in the meantime substituted preference for the posts to the ones given in the first instance in his application, and which led to his becoming a Punjab Civil Services Officer and Nerwal to be a Tehsildar, in the Allied services and had the substitution not been allowed the position would have been that Nerwal would have been in the P.C.S. and Bansal an Excise & Taxation Officer.
The challenge thus was to the Commission having allowed substitution of the preference.
The High Court negatived the challenge of Nerwal and his claim to be declared successful to a post in the Punjab Civil Service 415 in preference to Bansal and thus dismissed Civil Writ Petition No. 1860 of 1975.
Simultaneously Writ Petition No. 1172 of 1974 preferred by the unsuccessful candidates was allowed in part inasmuch as the selection of Bansal as a Punjab Civil Service Officer and his consequential appointment was quashed.
The High Court, however, did not disturb the selection of the remaining 70 successful candidates but required Bansal to compete again by issuing the following direction: "However, he is entitled to compete with the other unsuccessful candidates for securing place in the merit and we, therefore, direct that Shri V.M. Bansal (respondent No. 8) along with the other unsuccessful candidates be again interviewed by the members of the Commission except Shri J.R. Bansal (respondent No. 4) and whosoever is selected on merits shall have to be appointed against the post for which he is selected in accordance with the Rules.
We may, however, observe that if Shri J.R. Bansal (respondent No. 8) is again selected on merits, he will be entitled to his original seniority and all other benefits of the Service which he would have enjoyed had his selection not been quashed.
If in any case, no candidate is selected against the post of P.C.S. Cadre in accordance with the Rules, any of the other selected candidates may then make representation to the Government for being appointed to the post of P.C.S. in accordance with the Rules.
" Bansal is here before us to have the aforesaid direction quashed and Nerwal to have the place of Bansal as a Punjab Civil Service Officer.
We heard learned counsel for the respective parties on every aspect of the case at great length.
The High Court was goaded to issue the above direction regulating selection between Bansal and other unsuccessful candidates, as also the consequence thereof, on applying the decision of this Court in A.K. Kraipak & Ors. etc.
vs Union of India & Ors., to neutralise Bansal 's father Shri J. R. Bansal being a member of the Public service Commission.
And even though he had not participated in the deliberations of the Commission, when Bansal had been interviewed, his brooding presence was held negatively to have influenced the selection and the possible ouster of a possibly successful candidate.
Kraipak 's case was one where one of the persons, who sat as a member of the selection board, was himself, one of the persons to be considered for selection.
He participated in the 416 deliberations of the selection board when the claims of his rivals were considered.
He participated in the decisions relating to the preference in seniority.
He participated at every stage in the deliberations of the selection board where there was conflict between his interest and duty.
In such set of facts this Court unhesitatingly came to the conclusion that there was a reasonable likelihood of bias and therefore the principles of natural justice had got violated.
But this Court in Javid Rasool Bhat & Ors.
vs State of Jammu & Kashmir & Ors.
, ; did not vitiate the selection of a candidate to admission in a medical college on the ground of presence in the selection board of the father of one of the candidates.
In this case, the Principal of Medical College, Srinagar whose daughter was a candidate for admission to the Medical College informed the Selection Committee at the very outset about this fact and told them that he would not have anything to do with a written test and would not be present when his daughter would be interviewed.
The other members of the Selection Committee agreed to the proposal.
The procedure adopted by the Selection Committee and the members concerned was in accord with the generally accepted and well known procedure adopted by the Public Service Commissions every where in the country, as it was not unusual for candidates related to members of the Service Commission and selection Committees to seek employment.
In such a situation the practice generally in vogue is for the member concerned to excuse himself when the particular candidate is interviewed and such a selection is beyond challenge, unless, of course, mala fide.
See this Court 's decision in S.N. Nagarajan & Ors.
vs State of Mysore & Ors., , also.
Then we have the momentous decision of this Court in Ashok Kumar Yadav and Ors.
vs State of Haryana & Ors. etc.
etc., [1985] (Supp.) SCR 657 which without whittling down the salutary principle evolved in Kraipak 's case (supra) has put the Public Service Commissions, being creatures of the Constitution, at a higher pedestal.
At pages 686 87, it was ruled as follows: "But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and allied services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a Commission set up under Article 316 of the Constitution.
It is a Commission which consists of a Chairman and a specified number of members and is a Constitutional Authority.
We do not think that the princi 417 ple which requires that a member of a selection committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a Constitutional Authority like the Public Service Commission, whether Central or State.
If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place.
And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected.
When two or more members of a Public Service Commission are holding a viva voce examination they are functioning not as individuals but as the Public Service Commission.
Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him.
" It was the admitted case before the High Court that Bansal 's father did participate in the deliberations of the Commission when the viva voce test of other candidates appearing before the Commission had been taken and he had accordingly awarded marks to the candidates otherwise competing with his own son.
The High Court has still deduced that inspite of the afore suggested bias the candidates who got selected against the posts (except his son) got their due unbiased and therefore their selection cannot be questioned.
Taking this deduction to be correct, the High Court before issuing the direction under challenge, had further to find that there was bias in excluding the unsuccessful candidates.
We do not find this to have engaged the attention of the High Court.
It is noticeable that besides Bansal 's father there were four other members of the Public Service Commission and who had functioned as a Commission.
As is evident there was a long list of as many 540 candidates to be interviewed and the interviews went on from 24 9 1973 uptill 30 10 1973.
In the nature of things, there was no material before the High Court, and none has been pointed to us, from which it could be concluded that the members 418 of the commission could keep track of the comparatives of each of those 540 candidates so as to manipulate a favourable result to Bansal.
We have not been shown any material to entertain the doubt that Bansal 's father being a member of the Public Service Commission, per se had the effect of other members keeping track of comparatives in order to single out Bansal 's as a successful candidate.
And lastly there is not a word of mala fide suggested against the other members of the Public Service Commission, of having shared the supposed animus of Bansal 's father.
Thus, in the facts and circumstances of this case, we do not find any reason to sustain the judgment of the High Court on this aspect of the case.
Bansal 's father did what was expected of him, in having declined to participate in the deliberations of the commission when Bansal went for the viva voce test.
Our view in this regard is further strengthened by the manner in which the viva voce test is conducted and which the High Court even has not disapproved.
It appears that out of a total of 825 marks, 625 marks have been allotted for written tests and the remaining 200 marks for viva voce test.
These viva voce marks are distributed in various heads as enumerated by the High Court.
What is significant is that each member individually gets 25 marks but on actual working, if one of them is not attending, the share of marks are divided in the present members.
Further these marks are strictly not divided as 25 marks for each member but each member allots marks to each candidate out of 125 marks and these when added are divided by 5 or by the actual number of members present and participating in the interview.
We may not be taken to be commending such a system of division of marks out of the allocated marks for the viva voce test but it seems this is the practice in which they are actually worked out.
Similarly the provision of 200 marks for viva voce test cannot meet our approval because of the percentage now authoritatively fixed in Ashok Kumar Yadav 's case (supra).
On these particulars and for these reasons no single member can possibly usurp to himself the total functioning of the commission and jealous as human nature is, no other member can be expected to have abdicated his powers to another, at that level, and to oblige another.
These circumstances do not give rise to the likelihood of Bansal 's father espousing the cause of his son to the other four members of the commission and monitor the performance of 540 candidates to be interviewed, the results of written examination of which, he was not alleged to be aware beforehand.
In these circumstances, we find it difficult to uphold the view of the High Court requiring Bansal to be interviewed again so as to rub against the unsuccessful candidates and suffer the consequence.
419 On the grant of special leave to Bansal, operation of the judgment and order of the High Court appealed against, was on 27th July, 1977, stayed.
Bansal has stayed put and working as an Officer in the Punjab Civil Service and his displacement at the present stage would otherwise be inequitous serving nobody 's purpose due to the time lag.
The unsuccessful candidates cannot possibly now, at this stage, due to age and other supervening factors, be fit for the viva voce test, so as to elbow out Bansal.
The obedience of the directions of the High Court at this late stage would overly be counter productive and thus not worth sustaining.
This brings us to the claim of Nerwal for displacement of Bansal from the post in the Punjab Civil Service in substitution to that held by him as a Tehsildar.
The facts as found by the High Court are that initially Shri V.M.Bansal 's first preference was for the post of Excise & Taxation Officer, but on December 4, 1973, he had intimated to the Commission that he required change of his preference so that his first preference was of Punjab Civil Service (Executive Branch).
The intimation was received in the office of the commission on December 4, 1974 itself and the Chairman of the commission on the same date allowed the change.
That such change was permissible before the declaration of the result is beyond dispute.
What was urged before the High Court was that since Bansal 's application did not form part of all like applications sent in a bundle by the commission to the state Government on 11th December, 1973 and had rather been sent separately later on December 20, 1973, that by itself raised a doubt as to the authenticity thereof.
The High Court negatived the contention.
It held that this circumstance alone did not conclusively prove that the change of preference was intimated to the commission after the declaration of the result on December 7, 1973 as alleged.
Though the High Court went on to observe that there was no statutory rule that no change in preference could be made after the result is communicated by the commission to the State Government, we are not obliged to go into that question.
In face of the finding of the High Court that circumstantially it was established on the record that the preference had been changed by Bansal on 4 12 73, before the declaration of the result, it is difficult to take a contrary view.
The High Court had even seen the original record to come to that view.
Such like inferences drawn are in the realm of facts and we have not been persuaded to take a different view.
Once this is established that the change of preference could be made and it was intimated and appproved timely, the conclusion is inescapable that Bansal 's first preference to a post in the Punjab Civil 420 service ranked superior to Nerwal 's preference, because of their interse ranking in the examination results.
Thus,the appeal of Jaswant Singh Nerwal has no substance deserving rejection.
Resultantly for the views afore expressed, Civil Appeal No. 833 of 1977 preferred by Shri V.M. Bansal is allowed and the Civil Writ Petition No. 1172 of 1974 before the High Court would stand dismissed and Civil Appeal No. 334 of 1978 of Shri Jaswant Singh Nerwal would stand dismissed affirming the dismissal of his Writ Petition No. 1860 of 1975 before the High Court, but without any order as to costs in both appeals.
D.R.L. C.A. No.334/78 dismissed C.A. No.833/77 allowed.
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For the recruitment of 71 officers in the Punjab Civil Services (Executive Branch) and Allied Services, the Punjab Public Service Commission, at the behest of the State of Punjab, held a competitive examination.
As per the requirement of the Punjab Civil Services (Executive Branch) Rules, 1930, the applying candidates specified the posts in order of preference in their respective applications.
One such candidate, appellant V.M. Bansal, who had initially indicated his first preference for the post of Excise & Taxation Officer, intimated to the Commission, but undisputedly before the declaration of the result, that he wanted change of his preference so that his first preference was of Punjab Civil Service (Executive Branch).
This change was allowed by the Commission.
Bansal 's father, who was a member of the Commission, did not participate in the deliberations of the Commission when Bansal was interviewed.
Of the 71 candidates declared successful, Bansal was declared successful for a post in the Punjab Civil Service, and appellant jaswant Singh Nerwal for the post of Tehsildar in the Allied Services.
Some of the unsuccessful candidates challenged the entire selection on various grounds before the Punjab and Haryana High Court by means of a writ petition.
On the other hand, Nerwal, through a separate writ petition, challenged the change of preference allowed by the Commission to Bansal which led to Bansal becoming a Punjab Civil Service Officer and Nerwal a Tehsildar, and claimed that he be declared successful to a post in the Punjab Civil Service in preference to Bansal.
The High Court by a common judgment rejected the claim of Nerwal and dismissed his writ petition, but allowed the writ petition preferred by the unsuccessful candidates in part inasmuch as the selection of Bansal as a Punjab Civil Service Officer and his consequential appointment was quashed.
The High Court however did not disturb the selection of the remaining 70 successful candidates but 412 required Bansal to compete again with the other unsuccessful candidates as per its direction extracted in the judgment.
The High Court in issuing the aforesaid direction applied the decision of this Court in A. K. Kraipak & Ors. etc.
V. Union of India & Ors., , to neutralise Bansal 's father being a member of the Commission.
And even though Bansal 's father had not participated in the deliberations of the Commission, when Bansal was interviewed, his brooding presence was held negatively to have influenced the selection and the possible ouster of a possibly successful candidate.
Hence these two appeals by special leave, one by Bansal and the other by Nerwal, against the judgment of the High Court.
Allowing the appeal of Bansal and dismissing the one filed by Nerwal, the Court, HELD: (1) Besides Bansal 's father, there were four other members of the Public Service Commission and who had functioned as a Commission.
There was a long list of as many 540 candidates to be interviewed and the interviews went on from 24.9.1973 uptil 30.10.1973.
[417G] (2) Bansal 's father did what was expected of him, in having declined to participate in the deliberations of the Commission when Bansal went for the viva voce test.
[418C] (3) No material has been shown to entertain the doubt that Bansal 's father being a member of the Public Service Commission, per se had the effect of other members keeping track of comparatives in order to single out Bansal as a successful candidate.
There is not a word of mala fide suggested against the other members of the Public Service Commission, of having shared the supposed animus of Bansal 's father.
There is therefore no reason to sustain the judgment of the High Court on this aspect of the case.
[418A B] A.K. Kraipak & Ors. etc.
vs Union of India & Ors., [19701 1 SCC 457, distinguished; Javid Rasool Bhat & Ors.
vs State of Jammu & Kashmir & Ors.
, ; , affirmed; B.N. Nagarajan & Ors.
vs State of Mysore & Ors.
, [ , referred to.
Ashok Kumar Yadav & Ors.
vs State of Haryana & Ors. etc.
, [1985] Supp.
SCR 657, relied upon.
(4) The manner in which the viva voce test is conducted, no single 413 member can possibly usurp to himself the total functioning of the Commission and jealous as human nature is, no other member can be expected to have abdicated his powers to another, at that level, and to oblige another.
These circumstances do not give rise to the likelihood of Bansal 's father espousing the cause of his son to the other four members of the Commission and monitor the performance of 540 candidates to be interviewed, the results of written examination of which, he was not alleged to be aware before hand.
In these circumstances, it is to uphold the view of the High Court requiring Bansal to be interviewed again so as to rub against the unsuccessful candidates and to suffer the consequence.
[418C H] In the instant case, the system of division of marks out of the allocated marks for the viva voce test amongst the actual number of members present and participating in the interview, was not however commended by the Court, nor did the Court approve the provision of 200 marks for the viva voce test because of the percentage now authoritatively fixed in Ashok Kumar Yadav 's case.
[418F] (5) Bansal has stayed put and working as an Officer in the Punjab Civil Service and his displacement at the present stage would otherwise be inequitous serving nobody 's purpose due to the time lag.
The unsuccessful candidates cannot possibly now, at this stage, due to age and other supervening factors be fit for the viva voce test, so as to elbow out Bansal.
The obedience of the directions of the High Court at this late stage would overly be counter productive and thus not worth sustaining.
[419A B] (6) Once it is established that the change of preference could be made and it was intimated and approved timely, the conclusion is inescapable that Bansal 's first preference to a post in the Punjab Civil Service ranked superior to Nerwal 's preference, because of their interse ranking in the examination results.
Thus the appeal of Nerwal has no substance and deserves rejection.
[419H 420A]
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Civil Appeal No. 1196 of 1986 with 830 of 1991.
From the Judgment and Order dated 19.4.1985 of the Calcutta 519 High Court in F.M.A.T.Nos.
153 of 1980 and 326 of 1983.
N.S. Hegde, Additional Solicitor General, Tapas Ray, D.K. Sinha, J.R.Das and D.N. Mukherjee for the Appellants.
P.P. Rao, A.K. Ganguli, Ajit Chakraborty, A. Mariarputham.
Mridula Ray, A. D. Sikri and B.B. Tawakley for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The West Bengal Services (Revision of Pay and allowance) Rules, 1970, (hereinafter referred to as 1970 Rules), issued in exercise of the power conferred by the proviso to Article 309 of the Constitution of India, vide Notification No. 5212.F dated 30th December, 1970 on the basis of the Pay Commission Report specified the revised scales of pay of the government employees in various departments with effect from 1st April, 1970.
Schedule I of the 1970 Rules relates to services generally.
The Government of West Bengal issued Notification No. 10303.F dated 19th November, 1974, amending the 1970 Rules.
The Notification material for the purpose of these cases is set out below: "NOTIFICATION No. 10303.F, Dated the 19th November, 1974.
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor is pleased to direct that the following amendment shall be made in the West Bengal Services (Revision of Pay and Allowance) Rules, 1970, Published with Finance Department Notification No. 5212,F, dated the 30th December.
1970, as amended from time to time, namely: AMENDMENTS In Schedule I, Part B, to the said rules, the following amendments shall be made: 1.
In the cadre of Assistant Engineers under different Departments, the Intermediate Selection Grade shall be at 15 per cent of the Cadre in the scale as shown in Column (3) of the Schedule.
520 II.
In departments/offices having services/posts as shown in Column (i) in the scale as shown in Column (2) of the Schedule, there shall be no Intermediate or New Selection Grade as the case may be at 10 per cent of the services/posts (except in the cadre of Assistant Engineer) in the scale as shown in Column (3) of the Schedule.
From 1st August 1974, the New/Intermediate Selection Grade shall be raised to 15 per cent, from 10 per cent.
(i) Sub Assistant Engineers having Engineering Degree shall have an initial start in the existing scale of Rs.300 600 at the stage of Rs.360 per month.
They will also get the benefit of age relaxation for direct recruitment either through the Public Service Commission or for ad hoc appointments.
(ii) All Test Relief Overseers and other diploma holder Engineers will henceforth be termed as Sub Assistant Engineers.
(iii) Sub Assistant Engineers with L.E.E. who have supervisor 's licence from the Commerce and Industries Department will get a qualification pay of Rs.50 per month.
(iv) Gazetted status is hereby conferred on the members of the Subordinate Engineering Service and all Sub Assistant Engineers.
The existing scale, namely Rs.375 10 415 15 610 20 650 prescribed for the members of the non gazetted Health Service having M.B.B.S., or M.M.F. qualifications shall be changed to Rs. 375 10 415 15 610 20 650 (E.B. after 8th and 18th stages) higher initial start at Rs.450.
All Licentiate Medical Officers in the West Bengal Health Service (Non Gazetted) who have completed 10 years of service shall be eligible for appointment in the West Bengal Health Service (Gazetted) within the existing cadre strength of the basic grade provided they are found suitable for the basic grade in consultation with the Public Service Commission.
521 VII.
The New or Intermediate Selection Grades sanctioned above shall be admissible after 10 years of service in the grade next below.
Unless otherwise stated above and in the Schedule; these amendments shall be deemed to have come into effect from 1st day of March, 1974.
The Notifications bearing No. 2194.F, 2195.F and 2197, dated the 11th March, 1974, stand cancelled.
No prior consultations with the Public Service Commission shall be necessary for making appointments to New/Intermediate Selection Grades sanctioned in this Notification." The said Notification contained a Schedule.
The relevant items dealing with Engineering is provided as follows: SCHEDULE _______________________________________________________________ Service/ Existing scale New/Intermediate Posts Rs. Selection Grade Rs. ________________________________________________________________ 1.
Engineering Services/Posts.
i) Assistant 475 30 685 35 1000 825 50 875 60 1415.
Engineer 50 1150, with selec tion grade for 5 per cent of the cadre on 1150 50 1350.
ii) Executive 825 50 875 1535 60 1775.
Engineer 60 1475.
iii) Sub Assistant 300 10 430 15 600 560 20 700 25 Engineer with higher initial 825(a).
start at Rs. 330/ .
____________________________________________________________ The respondents in Civil Appeal No. 1196 of 1986 and the respondents in the other Civil Appeal arising out of S.L.P. (Civil) No. 5298 of 1987 are diploma holder engineers employed in various 522 departments of the Government of West Bengal in the post of Operator cum Mechanics/Electricians etc.
in the scale of pay of Rs.230 425.
These respondents filed two writ petitions bearing No. C.R. Nos. 6053 (W) of 1978 and C.R. No.6593(W) of 1978 before the High Court of Calcutta, claiming that by virtue of sub para (ii) of Para IV of the Notification No. 10303.F dated 19th November, 1974, the writ petitioners who are diploma holders in engineering are to be termed as Sub Assistant Engineers and given the benefit of that post and the scale of pay of Rs.300 600.
They contended inter alia that the benefit of the aforesaid Notification was given to similarly situated persons in the other deparptments of the Government of West Bengal and the writ petitioners employed in the Agriculture Department had been subjected to discriminatory treatment.
The State Government contended before the High Court that sub para (ii) of Para IV of the said Notification applies only to the Overseers, Estimators and Sub Overseers already holding the scale of pay of Rs.300 600 and not to Operator cum Mechanics/Electricians etc.like the writ petitioners whose scale of pay is Rs.230 425.
According to the State, the said Notification was merely one changing the designation of various techniques and engineers having scale of pay of Rs.300 600 but having different designations and was meant to give uniformity of designation to all the aforesaid officials in the same scale of pay of Rs.300 600.
It was also the contention of the State that they being Operator cum Mechanics whose recruitment qualifications is much less than the the diploma in engineerings, the writ petitioners cannot or are not entitled to be redesignated as Sub Assistant Engineers.
These contentions were repelled by the learned single Judge who by judgment dated 19th September, 1979, allowed the writ petitions.
In the Judgment, Sabyasachi Mukharji, J., (as he then was) held as under: "Now it is important to emphasise that the said Notifications covered `other diploma holder Engineers '.
Now, if those who were engineers or those for whose recruitments qualification of being engineers was essential there was no necessity to indicate that they should be henceforth be termed as Sub Assistant Engineers.
They are Engineers, Sub Assistant or otherwise, before they were called by the deeming provision of the amended Notifications referred to hereinbefore.
" In construing sub para (ii) of Para IV of the said Notification, the learned Judge said thus: 523 "The aforesaid clause in the Notifications can only mean, in my opinion, that even though the persons who come within the purview of this amended clause of the Notification will for the limited purpose of their pay, allowances and other financial emoluments be termed from the date of coming into operation or from the mentioned in the Notification of 1974 that is to say from 1st of March, 1974 as Sub Assistant Engineers though they are, in fact, not engineers.
That in my opinion, is clear from the language used.
" The learned single Judge noticed that the history preceding the Notification supported the clear language used and persons holding different positions became by virtue of the Notification entitled to be termed as Sub Assistant Engineers irrespective and independent of whether by fortuitous circumstances some of the incumbents who got the benefits of the said Notification are also qualified engineers.
Accordingly, it was held that the writ petitioners come within the purview of the Notification for purpose of the the pay scale and the rule was made absolute.
The State Government carried the matter in appeal.
The Division Bench of the High Court vide judgment and order dated 19.4.1985, however, affirmed the judgment while holding that sub para (ii) of Para IV of the Notification dated 19.11.1974 cannot be construed to include the Operator cum Mechanics/Electricians who are holders of diploma in engineering and drawing the scale of pay of Rs. 230 425.
The appeal was dismissed with the observation that the writ petitioners should have been admitted to the benefit of the scale of pay of Rs.300 600 with higher initial start long before others holding the same position as the writ petitioners have been granted the benefits and that great injustice had been done to the writ petitioners by keeping them in the panel since 1974 without taking any steps for their appointments to the post of Sub Assistant Engineers although others have been appointed to the said post in implementation of the impugned Notification.
Being aggrieved by the appellate judgment, the State has moved this Court under Article 136 of Constitution.
Leave is granted in S.L.P.(C) No. 5298 of 1987.
The main contention urged on behalf of the appellants is two fold.
It is contended that the Division Bench having come to the 524 specific conclusion that the Notification in question is not applicable to the respsondents herein, the writ petitions ought to have been dismissed.
The further contention is that the appointment of 17 other persons without considering the case of the respondents even if irregular cannot be the basis for making the Notification applicable to the respondents.
Before considering these propositions put forward by Mr. Hegde, Addl.
Solicitor General, appearing for the appellants, we shall dispose of the preliminary objection raised by Mr. P.P. Rao, counsel for the respondents.
It was pointed out that no appeal has been preferred by the State of West Bengal against the judgment dated 25.6.1982 in the case of Ranjit Kumar Ghosh & Ors.
vs The State of West Bengal & Ors., being C.R. No. 923 (W) of 1980, granting similar relief and that the rule of law has become final so far as that matter is concerned.
Relying on the decision of this Court in Chief Secretary to Govt.
A.P. vs Cornelius, ; , it was argued that the State cannot agitate the case of only few others.
It is not disputed that the judgment against which no appeal has been preferred is only based on the judgment in the main case which is now pending before us for consideration.
The Court in State of Punjab vs Joginder Singh, [1963] Supp.2 SCR 169, where a similar objection was raised overruled the same observing at page 177 thus: "In our opinion, the true position arising, if the present appeal by the State Government should succeed, would be that the finality of the orders passed in the other three writ petitions by the Punjab High Court would not be disturbed and that those three successful petitioners would be entitled to retain the advantages which they had secured by the decision in their favour not being challenged by an appeal being filed.
That however would not help the present respondent who would be bound by our judgment in this appeal and besides, so far as the general law is concerned as applicable to everyone other than the three writ petitioners (who would be entitled to the benefit of decisions in their favours having attained finality), the law will be as laid down by this Court.
We therefore overrule the preliminary objection.
" It appears that this pronouncement was not noticed in Cornelius case (supra) where the facts were also not identical.
We have, therefore, no hesitation in overruling the preliminary objection.
525 The appellants, in our opinion, cannot however, succeed on the merits.
The basis of the respondents ' claim is that they are diploma holder engineers who are to be designated as Sub Assistant Engineers for the purpose of the revised pay scale by virtue of the Notification dated 19th November, 1974.
The learned single Judge had construed the expression 'other diploma holder engineers ' in clause (ii) of Para IV of the said Notification as covering persons like the respondents who are holders of diploma in engineering.
The Division Bench in holding a contrary view overlooked the fact that the posts of Overseers, Estimators and Sub Overseers were already covered under the category of Sub Assistant Engineers even under the unamended rules and were in the pay scale of Rs.300 600 whereas the respondents holding the post of Operator cum Mechanics/Electricians were diploma holder engineers in the scale of pay of Rs.230 425.
As noticed by the learned single Judge, the reasons for amending the 1970 Rules by the Notifications dated 11.3.1974 and 19.11.1974 was the decision of the Government to remove the anomalies in the existing rule so as to attract men of quality and also with a view to remove frustration among those having specialised knowledge of a technical nature.
This factual background was not considered by the Division Bench while considering the scope of the amended provisions.
The appellants admitted that in 1970 the pay scale of Overseers and Sub Overseers was revised and both Overseers and Sub Overseers were brought within the scale of Rs.300 600.
The Division Bench has recorded a finding to the effect that the Overseers.
Estimators and Sub Overseers were already included in the categories of Sub Assistant Engineers under Schedule I Part B of the 1970 Rules even before the same was amended by the Notification.
The persons brought under the category of 'other diploma holder engineers ' can only be the persons like the Operator cum Mechanic/Electrician with diploma in engineering and working in various departments in the Engineering Service.
It is to be noticed that the respondents have been absorbed in the posts of Operator cum Mechanics after having attended to the training sponsored under the scheme 'Training of Educated Unemployed Youths ' in the operation of river lift, deep tubewells and shallow tubewells etc.
Clause (iv) of Part IV of the Notification which states that Gazetted status is conferred on the members of the Subordinate Engineering Services and all Sub Assistant Engineers also relates to these two categories, that is, the Overseers, Sub Overseers and Estimators who are already members of the Subordinate Engineering Service and the 'other diploma holder engineers ' now termed as Sub Assistant Engineers.
526 It has been contended for the appellants that by construing the Notification as including Operators cum Mechanics in the lower time scale as Sub Assistant Engineers and giving them a higher scale, there would be a division amongst the Operators cum Mechanics in the matter of their pay scale and such an anomly would not have been contemplated by the rule makers.
There is no force in this contention.
It is well settled that difference in pay of employees belonging to the same cadre post or educational qualification is constitutionally valid and permissible and is not violative of Articles 14 and 16 of the Constitution.
The post of Sub Assistant Engineer is a direct recruitment post.
It appears that the Division Bench assumed that the post of Sub Assistant Engineers were ultimately a promotional post for the Operators cum Mechanics through intermediary promotions in intermediary grades.
This is incorrect.
Under the Rules, the post of Sub Assistant Engineers is not at all a promotional post for any categories of employees in the State, on the contrary, it is a direct recruitment post.
It is not contested that 17 other employees similarly placed as the respondents herein were given the benefits of the said amended Notifications and were conferred both status of Sub Assistant Engineers and also the pay scale thereof for the reason that they were also diploma holder engineers though they were not in the pay scale of Rs.300 600.
This is a concurrent finding that these respondents have been discriminated and the State Government had acted arbitrarily without any rational basis by conferring benefits of the Notification to 17 other employees in other departments while denying the said benefits to the said respondents in the Agriculture Department.
It has been brought to the notice of the Court that the Operators cum Mechanics would be absorbed in the existing vacancies in the category of Sub Assistant Engineers since injustice had been done to the respondents by keeping them in the panel since 1974 without taking any steps for their appointments as Sub Assistant Engineers along with others when such appointments were made and the assurance made before the Court.
The fact that in implementation of the judgment of the learned single Judge, the respondents have already been admitted to the benefits of the amended Rule, is an additional reason for this Court not to interfere with the impugned judgment.
We are, therefore, of the view that both the civil appeals have only to be dismissed.
We do so accordingly.
The parties are directed to bear their respective costs.
Y.L. Appeals dismissed.
|
The respondents in these appeals are diploma holder engineers employed in the various departments of the Government of West Bengal as Operator cum mechanics/Electricians etc.
in the pay scale of Rs.230 425.
Consequent upon the amendment of West Bengal Services (Revision of Pay and Allowances) Rules, 1970 the respondents filed writ petitions before the High Court claiming that by virtue of sub para (ii) of Para IV of the Notification dated 19.11.74 they are to be termed as Sub Assistant Engineers and given the benefit of that post and scale of pay of Rs.300 600, as they are diploma holders in engineers.
It was asserted by them that the benefit of the said Notification had been given to similarly situated persons in the other department of the State Government but they had been subjected to discriminatory treatment by denying to them those benefits.
The State Government contended before the High Court that sub para (ii) Para IV of the notification applied only to Overseers, Estimators and Sub Overseers already working in the pay scale of Rs.300 600 and not to Operator cum Mechanics/Electricians etc.
whose scale of pay was Rs.230 425.
According to the State, the said Notification was intended merely to change the designation of various technicians and engineers having identical scale of pay Rs.300 600 to secure uniformity of designation of those employees and since the recruitment qualification of the respondents was much less than the diploma in engineering, they were not entitled to be redesignated as Sub Assistant Engineers.
The learned single Judge of the High Court allowed the writ petitions holding that the case of the respondents fell within the purview of the November 1974 notification and they were entitled to be termed as Sub Assistant Engineers.
The State Government preferred an appeal against the said order before the Division Bench.
The Division Bench of the High Court, though held that sub para (ii) of para IV of the Notification dated 19.11.1974 could not be 518 construed to include the Operator cum Mechanics/Electricians, who were drawing the pay scale of Rs.230 425, dismissed the appeals with the observation that the respondents/writ petitioners should have been admitted to the benefit of the pay scale of Rs.300 600 long before others holding the same position as the writ petitioners had been granted the benefits.
The State Government has now filed these appeals after obtaining special leave.
Dismissing the appeals, this Court, HELD: The reasons for amending the 1970 Rules by the Notifications dated 11.3.1974 and 19.11.1974 was the decision of the Government to remove the anomalies in the existing rule so as to attract men of quality and also with a view to remove frustration among those having specialised knowledge of a technical nature.[525C D] The persons brought under the category of `other diploma holder engineers ' can only be the persons like the Operator Cum Mechanic/Electrician with diploma in engineering and working in various departments in the Engineering Service.
[525F] Clause (iv) of Para IV of the Notification which states that Gazetted status is conferred on the members of the Subordinate Engineering Services and all sub Assistant Engineers also relates to these two categories, that is, the Overseers, Sub Overseers and Estimators who are already members of the Subordinate Engineering Service and the `other diploma holder engineers ' now termed as Sub Assistant Engineering.
[525G H] There is a concurrent finding that these respondents have been discriminated and the State Government had acted arbitrarily without any rational basis by conferring benefits of the Notification to 17 other employees in other departments while denying the said benefits to the said respondents in the Agriculture Department.[526E] Chief Secretary to Government of A.P. vs Cornelius, ; ; State of Punjab vs Joginder Singh, [1963] Supp.2 SCR 169, referred to.
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Civil Appeal No. 4 of 1977.
From the Judgment and Order dated 3/4.3.1975 of the Calcutta High Court in Appeal No. 156 of 1974.
G.L. Sanghi, Dhruv Mehta, Aman Vachhar and S.K. Mehta for the Appellants.
Tapas Ray and G.S. Chatterjee for the Respondents.
Harish N. Salve, Lalit Bhasin, Ms. Nina Gupta, Vibhu Bhakru, Pranab Mullick and Vineet Kumar for the intervener.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by certificate is from the Judgment of the Calcutta High Court dated 4.3.1975 passed in appeal No. 156 of 1974.
The appellants in partnership have been carrying on business of restaurants under the name and style of Trinca 's at No. 17B, Park Street Calcutta, providing food and drinks (alcohol and non alcohol) to the customers under valid licences.
Sometimes musical performences are also arranged.
The restaurants are provided with air conditioning plant.
Under the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972 as amended by the Act of 1974, hereinafter referred to as 'the Act, the respondents by their Memo No. 4942/A.T. dated 9.12.1972 called upon the appellants to make ad hoc payment of luxury tax calculated at Rs.2,40,000.00.
The President of the Hotelers ' Association made a representation against this illegal tax which was turned down by the respondents, and thereafter the appellants challenged the validity of this action in the Calcutta High Court by filing Writ Petition No. 358 of 1973 on 16.5.1973.
The appelants contended, inter alia before the High Court that the levy was unreasonable restriction on carrying the business; that the levy was unreasonable restriction on carrying the business; the Act was not meaningful and purposeful; the rules were confiscatory in nature; and the mode of the Act.
The learned Single Judge of the High Court dismissed the writ petition relying on the Judgment passed on 6.3.1974 in Writ Petition No. 338 of 1973 wherefrom Civil Appeal No. 406 of 1976 was filed in this Court.
467 From the above order of the learned Single Judge, the appellants filed Appeal No. 156 of 1974 on 26.6.1974 before the Division Bench of the Calcutta High Court contending that the legislature cannot enlarge the scope of Entry 62 and seek to impose a tax on expenditure incurred by a customer on services rendered to him including food and drinks.
The High Court held that section 2(b) defined entertainment tax but section 2(c) defined entertainment tax and under the Act entertainment tax meant tax payable under section 3 of the Act.
A clear distinction had been made between entertainment and entertainment tax and in this case the High Court was concerned only with entertainment tax as defined in section 2(C).
The second submission before the High Court was whether the State legislature had the competence to impose entertainment tax payable under section 3 of the Act and the High Court held that section 3 was a valid piece of legislation.
The argument of the appellants was that tax imposed by section 3 was discriminatory and it violated article 14 of the Constitution.
The High Court held that the differentia made in section 3 had a rational relation to the object sought to be achieved by the statute.
The last submission was whether the persons enjoying the same facilities had been treated differently as the section had imposed a maximum tax of 15% on amount paid or payable by the customer.
The High Court held that since a distinction had to be maintained between section 2(b) and section 2(c), the learned counsel 's argument on discrimination could not be acceded to.
The appeal was accordingly dismissed, but certificate of fitness to appeal was granted.
The contentions raised in this appeal are the same as were raised in Civil Appeal No. 406 of 1976 whcih has just been dismissed.
In East India Hotels Ltd. vs State of West Bengal, AIR 1990 SC 2029 this Court held that whatever has been said by this Court in relation to section 4 of the Act will be equally applicable to section 3 of the Act.
Consequently, for the above reason and for the reasons stated in our Judgment in Civil Appeal No. 406 of 1976, we dismiss this appeal also with costs quantified at Rs.5,000 (Rupees five thousand).
G.N. Appeal dismissed.
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Under the West Bengal Entertainments and Luxuries (Hotels and Restaurents) Tax Act, 1972 as amended in 1974, the appellants were called upon to make ad hoc payment of luxury tax calculated at Rs.2,40,000.
A representation from the Hotel Association to the Respondents having being turned down, the appellants filed Writ Petition before the High Court, challenging the constitutional validity of the Act.
The Writ Petition was dismissed by a Single Judge.
On appeal, the Division Bench declined to interfere holding that there was no dicrimination, and thus there was no violation of Article 14 of the Constitution.
Aggrieved, the appellants preferred the present appeal.
Dismissing the appeal, this Court, HELD: 1.
The Luxury Tax charged under Section 4 of the West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act, 1972, is not discriminatory and is constitutionally valid for the reasons stated in the judgment of this Court in a similar matter wherein the same contentions were urged.
[467E F] M/s. Spences Hotel Pvt. Ltd. & Anr.
vs State of West Bengal and Ors., [1991] 1 SCR applied.
Whatever has been stated by this Court in relation to Section 4 of the Act would be equally applicable to Section 3 of the Act.
[467F] East India Hotels Ltd. vs State of West Bengal, AIR 1990 SC 2029, relied on.
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ivil Appeal No.2327 of 1977.
From the Judgment and Order dated 23.5 1975 of the Allahabad High Court in First Appeal No. 302 of 1966.
K.C. Jain and H.K. Puri for the Appellants.
A.P.S. Chauhan, Roopendra Singh and A.S. Pundir for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is directed against the common judgment and order of the Division Bench of the Allahabad High Court dated May 23, 1975.
The appellant herein (since deceased and represented by Legal 391 Representatives) was the owner of 48613 sq. yards of land in village Ghatwasan, Teh.
Sadar, Dist.
The same was acquired by the Agra Town Improvement Trust under the provisions of the U.P. Town Improvement Act, 1919.
Notification under section 36(2) of the aforesaid Act.
which is analogous to section 4 of the Land Acquisition Act, 1894 was issued on 29 7 1950 and the acquisition proceedings culminated by an award of the Land Acquisition Collector, followed by taking possession of the land from the appellant on 11 3 1953.
For the land acquired, the appellant was paid a partly sum of Rs. 1344 2 annas &, 6 paise as compensation.
No solatium was awarded as none was awardable under the U.P. Town Improvement Act, 1919.
Feeling dissatisfied the appellant sought a reference under section 18 of the Land Acquisition Act before the Nagar Mahapalika Tribunal, a creature of the U.P. Town Improvement Act, 1919.
The appellant asserted before the Tribunal that he should have been allowed a rate of Rs.8 per sq. yard for the acquired land.
The Tribunal partly accepted the claim of the appellant by its order dated 5 11 1965 raising compensation to the rate of Rs.3 per sq. yard and thus held the appellant entitled to a total sum of Rs. 1,45,889 inclusive of the sum of about Rs. 1344 already received by him.
The Tribunal also awarded interest on the amount due at the rate of 4 1/2 percent per annum with effect from 11 3 1953, the date of taking possession of the land till its payment.
Still dissatisfied, the appellant moved the High Court of Allahabad in appeal; a forum provided under the U.P. Town Improvement (Appeals) Act, 1920, but on grounds analogous to section 100 CPC.
Correspondingly the Nagar Mahapalika also filed a cross appeal against enhancement.
The Tribunal disposed of both the appeals by a common judgment.
The appellant was awarded enhanced compensation at the rate of Rs.4 per sq. yard.
Consequently an additional sum of Rs.48613 was held due to him.
The High Court also changed the rate Of interest from 4 1/2 percent per annum to 6 percent per annum, correcting the error committed by the Tribunal.
The claim of the appellant to solatium at the rate of 15 per cent on the sum awarded uptill the Tribunal 's level was rejected as the appellant had not claimed the same before the Tribunal and had not made a grouse thereof in his memorandum of appeal before the High Court.
So on the sum of Rs. 1,45,839 assessed as market value by the Tribunal, no Solatium was awarded.
On the amount of Rs.48,613 enhanced by the High Court, solatium at the rate of 15 per cent was awarded by the High Court, and interest thereon was also awarded from 11 3 1953.
392 the date of taking possession till its payment.
The appeal of the Nagar Mahapalika was dismissed.
The appellant alone who is before us has challenged the common judgment of the High Court.
No dispute herein has been raised to any further increase in the market value of the land.
The claim vehemently put forth is with regard to the solatium of 15 per cent on the market value of the land and which claim, partly has been negatived by the High Court.
It is not disputed that if the claim is valid, the rate of solatium would be 15 percent of the market value.
Though a faint attempt was made to raise claim to solatium at the rate of 30 per cent and interest to 9 per cent per annum in terms of the amendments made in the Land Acquisition Act, 1894 by means of Act No. 68 of 1984, but such claim was abandoned in the next breath.
So we are thus concerned only to the claim of solatium which has been declined by the High Court.
Section 23(2) of Land Acquisition Act, as it then was, provided that in addition to the market value of the land, as provided in sub section (1) of section 23, the court shall in every case award a sum of rupees fifteen per centum on such market value in consideration of the compulsory nature of acquisition.
Solatium, as the word goes, is "money comfort", quantified by the statute, and given as a conciliatory measure for the compulsory acquisition of the land of the citizen, by a welfare state such as ours.
The concern for such a citizen was voiced by the Law Commission of India in its Report submitted in 1957 on the Need for Reform in the Land Acquisition by observing as follows: "We are not also in favour of omitting Section 23(2) so as to exclude solatium of 15% for the compulsory nature of the acquisition.
It is not enough for a person to get the market value of the land as compensation in order to place himself in a position similar to that which he could have occupied had there been no acquisition; he may have to spend a considerable further amount for putting himself in the same position as before. .
As pointed out by Fitzgerald the community has no right to enrich itself by deliberately taking away the property of any of its members in such circumstances without providing adequate compensation for it.
This principle has been in force in India ever since the Act of 1870.
The Select Committee which examined the Bill of 1883 did not think it necessary to omit the provision but on the other hand transferred it to Section 23.
" 393 The importance of the award Of solatium cannot be undermined by any procedural blockades.
It follows automatically the market value of the land acquired, as a shadow would to a man.
It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired.
It follows as a matter of course without any impediment.
That it falls to be awarded by the Court "in every case" leaves no discretion with the court in not awarding it in some cases and awarding in others.
Since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the court to award and supply the omission at any stage where the Court gets occasion to amend or rectify.
This is the spirit of the provision, wherever made.
It is pertinent to note here that the claim of the appellant to solatium was not entertainable before the Land Acquisition Collector, taking proceedings of the acquisition under the U.P. Town Improvement Act in the absence of a provision allowing it.
Rather the amendments and modifications set out in the schedule attached to the U.P.Town Improvement Act made read that way.
The payment of solatium as awardable under section 23(2) of the Land Acquisition Act was specifically not made applicable to the land acquired under the U.P. Town Improvement Act.
Such amendment to the schedule, however, being violative of Article 14 of the Constitution was struck down by this Court on 14 12 1973 in Om Prakash & Another vs State of U.P. and Others vs State of U.P. and Others, This Court took the view that if the government could acquire land for a Mahapalika or other local body by resort either to the Land Acquisition Act or the U.P. Town Improvement Act, it would in the former case have to pay solatium and in the latter case not at all and which would lead to discrimination, and consequently granted relief of solatium to the land owner whose land was acquired.
On the law laid down by this Court, the High Court rightly took the view that since the amendments made to the schedule to the Town Improvement Act had gone out of the way of the appellant, the compensation due to him would have to be assessed in accordance with the provisions of section 23 of the Land Acquisition Act.
Holding so, the High Court awarded solatium on the amount enhanced by it and for that part rightly.
The denial of the solatium to the appellant on the sum awarded by the Tribunal is based on the reasoning that firstly the Collector had not awarded solatium and the appellant while taking the matter to the Tribunal had not raised such claim.
Secondly after the order of the Tribunal the appellant when taking the matter to the High Court in 394 appeal, had not made a grouse and laid claim to it in his grounds of appeal.
The High Court, it appears was even then prepared to grant solatium to the appellant and offered the appellant to seek amendment of the grounds of appeal but the appellant declined to do so asserting that his claim to solatium was not based on any demand at his instance but was rather a statutory duty of the Court to grant it, as otherwise, the mandate of section 23(2) would fail.
The High Court negatived such contention.
We do not appreciate the distinction made by the High Court in this regard.
The appellant had all the same not pleaded for grant of solatium in the grounds of appeal before the High Court while claiming enhanced compensation, and yet the High Court felt that it was under the statutory duty to grant solatium on the amount enhanced by it.
The High Court did not shut out the claim of the appellant on the ground that he had not asked for it specifically in the grounds of appeal.
If that is so, the legal error which was otherwise patent needed to be rectified by the High Court in favour of the appellant; more so when there was a cross appeal of the Nagar Mahapalika before it and resort could be had to the provisions of Order 41 Rule 33 C.P.C. Additionally, the claim to solatium arose in this regard on the basis of Om Prakash 's case (supra) on 14 12 1973 by which the provisions of the U.P. Town Improvement Act whereunder solatium was withheld were struck down, and on that date the appeal of the appellant against the order of the Tribunal dated 5 11 1965 was pending before the High Court.
The claim to solatiun surfaced and compulsory acquistition of the land but also on the law on the subject being declared by this Court in Om Prakash 's case (supra).
We are thus of the view that the High Court should have measured the claim of the appellant to solatium on the sum awarded by the Tribunal with the same yardstick as to the sum awarded by it and modified in decree accordingly.
We have thus no hesitation in upsetting the judgment and order of the High Court in this regard and award to the appellant solatium at the rate of 15% on the entire market value of the land, which would include a sum of Rs. 1,45,839 left out by the Tribunal and the High Court.
The appellant further shall be entitled to the interest at the rate of 6% per annum from 11 3 1953, the date of taking possession, till the date of payment of the sum due as solatium.
The appeal shall stand allowed accordingly.
Before parting with the judgment, we need to clarify that solatium in the scheme of section 23(2) of the Land Acquisition Act is part of the compensation and section 28 and 34 of the said Act pro 395 vided payment of interest on the amount of compensation.
This Court recently in Periyar and Pareekanni Rubbers Ltd. vs State of Kerala; , has ruled that compensation is recompense or reparation to the loss caused to the owner of the land and that payment of interest on solatium is to recompensate the owner of the land the loss of user of the land from the date of taking possession till date of payment into Court.
Therein the land owner was held entitled to interest on solatium).
Attention, however, may be invited to Dr. Shamlal Narula V. Commissioner of Income tax Punjab, ; The quality of the sum paid as interest was held somewhat different.
It was ruled therein that the statutory interest paid under the Act is interest paid for the delayed payment of compensation amount and in no event can that be described as compensation for owner 's right to retain possession, for he has no right to retain possession after possession was taken under sections 16 and 17 of the Act.
The quality of the receipt of interest can be left by us here, whether it be a recompense for the loss of user of land or is a sum paid for the delayed payment of compensation.
Solatium being part of compensation must fetch statutory interest from the date of dispossession of the land owner till date of payment.
Accordingly, we allow this appeal and direct that the appellant shall also be paid solatium at the rate of 15% on the left out amount of Rs. 1,45,839 and interest at the rate of 6% per annum thereon from 11 3 1953, the date of taking possession till date of payment, and that too with costs.
R. section section Appeal allowed.
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Appellant 's land was acquired by the Agra Town improvement Trust under the provisions of the U.P. Town Improvement Act, 1919.
For the land acquired, the appellant was paid a paltry sum.
No solatium was awarded as none was awardable under the Act.
[391B].
The appellant sought a reference before the Nagar Mahapalika Tribunal.
The Tribunal raised the compensation to Rs.1,45,839 and also awarded interest at the rate of 4 1/2 percent.
Still dissatisfied, the appellant moved the High Court in appeal.
The Nagarpalika also filed a cross appeal against enhancement.
The High Court allowed the appeal of the appellant and further enhanced the compensation by Rs.48,613 and the rate of interest to 6 percent.
On the amount of Rs.48,613 solatium at the rate of 15% was awarded by the High Court.
No solatium was however awarded on the slim Of Rs. 1,45,839 awarded by the Tribunal, on the ground that the appellant had not made a grouse or laid any claim to it in his grounds of appeal.
The High Court negatived the contention of the appellant that his claim to solatium was not based on any demand at his instance but it was rather a statutory duty of the Court to grant it.
Allowing the appeal, this Court, HELD: (1) Solatium, as the word goes, is "money comfort" quantified by the statute, and given as a conciliatory measure for the Compulsory acquisition of the land of the citizen, by a welfare state such as ours.
[392D E] 390 (2) The importance of the award of solatium cannot be undermined by any procedural brocades.
It follows automatically the market value of the land acquired, as a shadow would to a man.
It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired.
That it falls to be awarded by the Court "in every case" leaves no discretion with the court in not awarding it in some cases and awarding in others.
[393A B] Om Prakash vs State of Uttar Pradesh, [19741 2 S.C.C. 731, referred to.
(3) Solatium in the scheme of section 23(2) of the Land Acquisition Act is part of the compensation and sections 28 and 34 of the said Act Provide for payment of interest on the amount of compensation.
[394H 395A] Periyar & Pareekanni Rubbers Ltd. vs State of Kerala, ; , referred to.
(4) Solatium being part of compensation must fetch statutory interest from the date of dispossession of the land owner tin date of payment.
[395D] Dr. Shamlal Narula V. Commissioner of Income Tax Punjab, ; , referred to.
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ivil Appeal Nos.
4032 & 4033 of 1989.
From the Judgment and Order dated 30.4.1988 of the Rajasthan High Court in D. B. Civil W. P. Nos. 694 & 696 of 1988.
Appellant in person in C. A. No. 4032 of 1989.
Rajinder Sachher, and Ravinder Bana for the Appellant in C. A. No. 4033 of 1989.
Aruneshwar Gupta for the Respondents in both the appeals.
The Judgment of the Court was delivered by PUNCHHI, J.
The identification of the highest post/posts in the Rajasthan Administrative Service, capable of being filled by merit alone, under sub rule (7) of 28 B of the Rajasthan Administrative Service Rules, 1954 (hereafter referred to as the `Rules '), is the search undertaken in these two connected appeals by special leave.
The respective appellants herein are Ajeet Singh Singhvi, who appeared in person, and Jagbir Singh who appeared through learned counsel.
Both the appellants, at the time they moved the Rajasthan High Court by means of their respective writ petitions, were high ranked officers in the Rajasthan Administrative Service but found their further chances to promotion obstacled on account of the amendments caused in the said Rules with effect from July 17, 1987.
Broadly stated, on such amendments a Super Time scale was created which statedly was to remove stagnation in service.
The contention of 581 the appellants before the High Court was, and is, that the creation of Super Time scale did not have the automatic effect of creating highest post/posts to be filled by merit alone, and that the posts which Super Time scale was attractive remained `higher posts ' in contrast to `highest post ' available to the members of the Rajasthan Administrative Service on the prescribed percentage of 50 percent on merit and the remaining fifty percent on seniority cum merit.
The appellants challenged the vires of the amendments dated 17 7 1987 for confining the selection to the highest posts made thereafter solely on the basis of merit.
Before the High Court, however, the question of vires of the amendments was given up and thus the High Court invited its attention to the following two questions: (i) whether the Super Time scale is/are the highest post/posts in the service; and (ii) if it is so, whether that post/posts is/are to be filled on the basis of seniority cum merit in the proportion of 50:50 or on merit alone in accordance with sub rule (7) of Rule 28 B of the Rules? The High Court by a long and an elaborate judgment, dated 30.4.1988 traced the history of the Rules and the amendments made to rules 28 B and 32 from time to time expressed the opinion that Super Time scale post/posts was/were the highest post/posts in the service and those required to be filled on merit alone and not in the proportion of 50:50 on the basis of merit and seniority cum merit.
It is to challenge that view that these matters are here before us and we have had the opportunity of hearing the party in person and learned counsel on both sides.
We begin by taking note that the word `highest ' has not been given a definitive meaning in the Rules, and has to be understood and employed in the context in its ordinary meaning and diction.
Rule 6 prescribes the strength of the service.
It mandates that the strength of post in each grade of the service shall be such as may be determined by the government from time to time.
The proviso thereto leaves all the possible flexibility with the government in the creation of any post of any kind and nature and for its abolition.
The latest notification in that regard, as was placed before us, is Notification No. F1(2) Karmik/ Ka IV/79 dated January 12, 1988 issued from the Department of Personnel and Administrative Reforms, Government of Rajasthan specifying that as per Rule 6 of the Service Rules, the strength of posts 582 in each grade of Rajasthan Administrative Service is determined therein.
The said notification is found in a compilation prepared by the Rajasthan Administrative Service Association, amended upto June, 19,1988.
It demonstrates posts with their titles divided into seven categories.
The first category is of Super Time Scale posts in the grade of Rs. 3900 125 4400 150 5300.
The second category is of selection scale post in the grade of 2978 75 3050 100 3650 125 4400 150 4700.
Thereafter there are lesser pay scale given in the third category of senior scale posts and in the fourth category, junior scale posts followed by special ex cadre posts, training reserve and leave reserve posts.
The Super Time Scale posts are 25 in number and those posts are named and numbered as follows: section NO.
Name of the Post No. of Posts 1.
Director of Agriculture Marketing & Ex 1 Officio Dy.
to Govt.
Director, Local Bodies 1 3.
Commissioner, Devasthan Deptt.
Revenue Appellate Authority 10 5.
Principal, A.P.R.T.S., TONK 1 6.
Divisional Commissioners 6 7.
Director, HCM RIPA, Udaipur 1 8.
Commissioner, Co,.
Cum R. A. A., Bikaner1 9.
Commissioner, TAD 1 10.
Commissioner, Desert Dav.
Commissioner, Transport 1 25 Now whether these posts are the highest posts in the Rajasthan Administrative Service or are just higher posts, so as to identify the criteria applicable for promoting to these posts their personnel.
`Service ' has been defined in Rule 4 L to mean the Rajasthan Administrative Service.
Sub rule (7) of Rule 28 B prescribes that 583 selection for promotion to the highest post/posts in the State Service shall always be made on the basis of merit alone.
As said before, `highest posts ' has nowhere been defined.
Prior to the amendment of July 17, 1987, sub rule (7) read as follows: "Selection for promotion to the highest post or highest category of posts in the State Service shall always be made on the basis of merit alone." According to the appellants, prior to July 17, 1987 the highest post was never identified and equally the highest category of posts were nowhere visible.
The posts now falling in the Super Time Scale, tabulation of which stands incorporated above, were always considered as higher posts and in terms of sub rule (6) of rule 28 B,Selection for promotion to all other higher posts/higher category of posts in the State Service were required to be made on the basis of merit and seniority cum merit in the proportion of 50:50.
The proviso, however, to sub rule (6) provided that if the Committee (appointed under Rule 28) was satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority cum merit may be made in the same manner as specified in these Rules.
The two appellants maintained that before the introduction of the Super Time scale vide amendment dated July 17, 1987 there were only three categories, namely, ordinary scale posts (alternatively known as junior scale), senior scale posts and selection scale posts in the Service and these continued as such despite the amendments.
Before the High Court the exercise to identify the Super Time selection posts would have been easy had the government notification dated 12th January,1988 been brought to its notice.
In any event after the issuance of the Government notification dated 12th January, 1988, those very posts in the Service have now been designated as junior scale, senior scale, selection scale and super time scale posts and for valid administrative reason have Super Time Scale posts been treated as highest posts even though they may have hitherto belonged to the category of higher posts; the State Service remaining the same.
Rule 15 prescribes eligibility for consideration for promotion on the basis of qualifying service for promotion.
Rule 28 prescribes the procedure for promotion and postulates the Constitution of a Commitee.
Rule 28 B, so far as is relevant for our purpose, is called out below: "28 B REVISED CRITERIA, ELIGIBILITY AND 584 PROCEDURE FOR PROMOTION TO JUNIOR, SENIOR AND OTHER POSTS ENCADRED IN THE SERVICE (i) As soon as the appointing authority determines the number of vacancies (under rule 9 of these Rules) and decides that a certain number of posts are required to be filled in by promotion, it shall, subject to provisions of sub rule (9), prepare a correct and complete list of senior most persons who are eligible and qualified under these Rules for promotion on the basis of seniority cum merit or on the basis of merit to the class of posts concerned.
(2) For appointment to the Service by promotion, the eligible persons included in the list mentioned in rule 28 shall be considered.
(3) xxxxxxxxxxx (4) Selection for promotion in the reguler line of promotion from the post/posts not included in Service to the lowest post or category of post in the Service shall be made strictly on the basis of merit and on the basis of seniority cum merit in the proportion of 50:50.
PROVIDED that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority cum merit may be made in the manner as specified in these Rules.
(5) Subject to the provisions of sub rule (7),selection for promotion from the lowest post or category of post in the State Service to the next higher post or category of post in the State Service and for all posts in the Subordinate Services and in the Ministerial Services shall be made strictly on the basis of seniority cum merit from amongst the persons who have passed the qualifying examination, if any, prescribed under these Rules, and have put in at least five years service, unless a different period is prescribed elsewhere in these Rules, on the first day of the month of April of the year of selection on the post or category of post from which selection is made: 585 PROVIDED that in the event of non availability of the persons with the requisite period of Service of five years, the Committee may consider the persons having less than the prescribed period of Service, if they fulfill the qualifications and other conditions for promotion prescribed elsewhere in these Rules, and are found otherwise suitable for promotion on the basis of seniority cum merit.
(6) Selection for promotion to all other higher posts or higher categories of posts in the States Service shall be made on the basis of merit and on the basis of seniority cum merit in the proportion of 50:50.
PROVIDED that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority cum merit may be made in the same manner as specified in these Rules.
EXPLANATION: If in a Service, in any category of post, number of posts available for promotion is an odd number then for purpose of determining the vacancies for selection by promotion on the basis of seniority cum merit and merit in the proportion of 50:50, the following cyclic order shall be followed: The first vacancy by seniority cum merit; The subsequent vacancy by merit; The cycle to be repeated.
(7) Selection for promotion to the highest post/posts in the State Service shall always be made on the basis of merit alone: PROVIDED that (a) in a Service or Groups or Sections thereunder, where there are only two scales e.g. junior scale or senior scale and there is only one promotion then promotion shall be made on the basis of seniority cum merit alone; (b) in a Service or Groups or Section thereunder, where there are three scales e.g. junior scale, and selection scale and there are two promotions then promotion shall be as under: 586 (i) first promotion on the basis of seniority cum merit.
(ii) second promotion on the basis of seniority cum merit and merit in the proportion of 50:50; (c) in Services or Groups or Sections thereunder, where there are more than two promotions then first promotion shall be made on the basis or seniority cum merit alone and promotions to subsequent higher posts shall be made on the basis of seniority cum merit and merit in the proportion of 50:50 except to the highest post.
PROVIDED further that if the Committee is satisfied that suitable persons are not available for selection by promotion to highest post/posts, strictly on the basis of merit in a particular year, selection by promotion to highest post/posts on the basis of seniority cum merit may be made in the same manner as specified in these rules.
(8) The persons having been selected and appointed by promotion to a post or category of post on the basis of merit, shall be eligible for promotion to the next higher post or category of post, which is to be filled in by merit, only when they have put in after regular selection, at least five years ' service, unless a higher period of Service is prescribed elsewhere in these Rules, on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made: PROVIDED that the condition of five years 'service shall not be applicable to a person, if any person junior to him is eligible for consideration for promotion on the basis of merit.
PROVIDED further that in the event of non availability of persons equal to the number of vacancies to be filled in, eligible for promotion in the category of post next lower from which promotion is made, the Committee may consider the persons having less than five years ' service, if they are found otherwise suitable for promotion on the basis of merit alone.
587 EXPLANATION: If any doubt arises about the categoriesation of the post as the lowest, next higher or highest post in the Service, the matter shall be referred to the Government in the Department of Personnel and Administrative Reforms whose decision thereon shall be final.
(9) The zone of consideration of persons eligible for promotion shall be as under: i) No. of vacancies No. of eligible persons to be considered a) for one vacancy Five eligible persons b) for two vacancies Eight eligible persons c) for three vacancies Ten eligible persons d) for four or more vacancies Three times the number of vacancies.
ii) Where, the number of eligible persons for promotion to higher post is less than the number specified above, all the persons so eligible shall be considered.
iii) Where,adequate number of candidates belonging to the Scheduled Castes or the Scheduled Tribes, as the cases may be, are not available within the zone of consideration specified above, the zone of consideration may be extended to five times the number of vacancies and the candidates belonging to the Scheduled Castes or the Scheduled Tribes, as the case may be, (and not any other) coming within the extended zone of consideration shall also be considered against the vacancies reserved for them.
iv) For the highest post in a State Service a) if promotion is from one category of post, eligible persons upto five in number shall be considered for promotion; b) if promotion is from different categories of the post in the same pay scale, eligible persons upto two in number from each category of posts in the same pay scale shall be considered for promotion; 588 c) if promotion is from different categories of posts carrying different pay scales, eligible persons in the higher paying scale shall be considered for promotion first and if no suitable person is available for promotion on the basis of merit in the higher pay scale then only the eligible persons of other categories of posts in lower pay scales shall be considered for promotion and so on and so forth.
The zone of consideration for eligibility in this case shall be limited to five senior most eligible persons in all.
xxxxxxxx 11.
a) XXXXXX b) XXXXXX c) XXXXXX 12.
XXXXXX 13.
XXXXXX 14.
XXXXXX 15.
XXXXXX 16.
XXXXXX Rule 32 after the amendment reads as follows: "32.
APPOINTMENT TO SENIOR POST (1) [In accordance with vacancies determined according to the provisions laid down in rule 9] appointment to [senior scale, selection scale and super time scale] post shall be made by Government from amongst the members of the Service in accordance with the selection having been made on the basis of merit and seniority cum merit on the recommendations of a Committee which shall consist of following: 1.
Chairman, Rajasthan Public Service Commission .
Chairman 2.
Chairman, Board of Revenue .
Member 3.
Secretary to Government in Super time scale of the 589 Indian Administrative Service, as may be nominated by the State Government .
Member 4.
Special Secretary to Govt.
in the Department of Personnel .
Member Secretary PROVIDED that in case any Member or Member Secretary, as the case may be constituting the Committee has not been appointed to the post concerned the officer holding charge of the post for the time being shall be the Member or Member Secretary, as the case may be of the Committee.
(2) Except as provided in this rule, the procedure and the principles for selection by merit shall, in so far it may apply, be the same as provided in rule 28 B.
For selection by seniority cum merit, the Committee shall consider the cases of all the persons eligible for promotion by examining their Confidential Rolls and Personal Files and interviewing such of them as they may deem necessary, and shall select a number of candidates equal to the number of vacancies likely to be filled by promotion by seniority cum merit.
PROVIDED (1) that appointment to the senior or selection grade post [or super time scale] post may be made by Government by appointing thereto temporarily a person eligible for appointment by the promotion to the Service under the provisions of these Rules.
(2) No appointment made under [proviso (1)] above shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur".
Argument was sought to be built that in Rule 32, Super Time scale was introduced with effect from 17 7 1987 whereunder the Government was required to make an appointment on the basis of merit and seniority cum merit on 50:50 basis in accordance with subrule 6 of rule 28 B in the absence of identification of posts.
The argument looses its thrust in entirety when viewed on the basis of sub rule (2) whereunder the procedure and principles for selection by merit 590 shall, in so far it may apply, is the same as provided in rule 28 B. which embodies sub rule (7) as well.
We have in the context to apply the Rule of harmonious construction.
In The J. K. Cotton Spinning & Weaving Mills Co. Ltd. vs The State of Uttar Pradesh & Others; ; this Court applied the rule of harmonious construction even to subordinate legislation and laid down as follows: "In applying the rule however we have to remember that to harmonise is not to destroy.
In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.
These presumption will have to be made in the case of rule making authority also." Then again in Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India & Others, at pages 404 05 it was observed as follows: "The dominant purpose in construing a statute is to ascertain the intention of the Parliament.
One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity.
The first question to the posed is whether there is any ambiguity in the language used in rule 40.
If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else discover the intention or meaning.
If the literal construction leads to an absurdity, external aids to construction can be resorted to.
To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed.
This necessitates examination of the broad features of the Act.
" On the application of above principles, it is noticeable that the terms `higher post ' and `highest post ' occuring in Rules 28 B and 32 by all means are relative ones expected to be created in singular or plural terms under Rule 6 whereunder the strength of posts in each grade was determinable by the government from time to time.
Sub rule (7) even before the amendment of 17 7 1987 postulated a highest post/posts capable of being filled on the basis of merit alone.
The fact that they 591 remained un identified gives no basis to the plea that the State was incapacitated to identify at a later stage the highest posts in the State Service required to be filled on the basis of merit alone.
It seems to us, on a close analysis,and on the language employed in Rules 28 B and 32 that the highest post/posts conceptually were part of the Rules but their effectuation and identification has surfaced only by means of the amendments of July 17, 1987 and the notification of January 12, 1988.
Another significant factor which leans towards such an interpretation is the stance of the State which militates against the views canvassed on behalf of the appellants.
There is an inbuilt safety kept in the explanation added to sub rule (8) of Rule 28 B which prescribes that if any doubt arises, amongst others, about the categorisation of the posts as the highest posts in the Service, the matter shall be referred to the government in the Department of Personnel and Administrative Reforms, whose decision there on shall be final.
The appellants could easily have raked up and got referred the matter to the government to have a decision thereon.
The view of the government in maintaining that the Super Time scale posts are highest posts is not only a bare and literal interpretation given by it to the Rules but also is reflective of its policy in this regard and no decision needs to be given by the Court in normal circumstances to amend or alter such policy.
In such a realm even contemporaneous exposition of a similar rule in an other set of rules cannot play their part to influence either the Court or the Government to give the same interpretation or exposition to the rules requiring interpretation herein.
Besides the government being the author of the rule, has kept to itself, as a matter of prudence; the right to remove any ambiguity about the identification of any post including the highest post/posts.
The stance of the government in this regard should have clinched the matter but since the same had been put forth as a defence in the High Court, its view nonetheless are entitled to great weight and the burden of the appellants to lift that weight, an uphill task by all means, has remained unfulfilled.
To sum up, our interpretation of the rules is in accord with the interpretation of the rules as put by the High Court holding that the Super Time scale posts are the highest posts in the Service and selection for promotion and appointment on that basis in the Service has to be made on the basis of merit alone and not on the basis of seniority cum merit and merit in the proportion of 50:50.
In the facts and circumstances of the case, however, we pass no order as to costs, while dismissing the appeals.
|
The appellants are high ranking officers in Rajasthan Administrative Service governed by the Rajasthan Administrative Service Rules, 1954.
Consequent upon the amendment caused to the said rules on July 17, 1987, they felt that the amendment had affected their further promotional chances.
They therefore filed writ petitions before the High court challenging the vires of the amendment dated 17.7.1987 contending that the creation of Super time scale did not have the automatic effect of creating highest post/posts to be filled by merit alone, and that the posts to which Super Time Scale was attracted remained `higher posts ' in contrast to `highest posts ' available to the members of the Rajasthan Administrative Service on the prescribed percentage of 50 per cent on merit and the remaining fifty per cent on seniority cum merit.
Their case was that section to the highest posts made under the amended rule solely on the basis of the merit was bad in law.
Before the High Court challenge to the vires of the amendment was abandoned and the High Court considered the question (i) whether the Super time scale is/are the highest post/posts in the service and (ii) if it is so, whether the post/posts is/are to be filled on the basis of seniority cum merit in the proportion of 50:50 or on merit alone in accordance with sub rule (7) of /Rule 28 B of the Rules: The High Court rejected the writ petitions opening that the Super Time Scale post/posts was/were the highest post/posts in the service and those are required to be filled on merit alone and not in the proportion of 50:50 on the basis of merit and seniority cum merit.
Hence these appeals by the appellants.
Dismissing the appeals this Court HELD: The terms `higher post ' and `highest post ' occurring in 580 Rules 28 B and 32 by all means are relative ones expected to be created in singular or plural terms under rule 6 whereunder the strength of posts in each grade was determinable by the government from time to time.
Sub rule (7) even before the amendment of 17.7.1987 postulated a highest post/post capable of being filled on the basis of merit alone.
[590 G H] Super Time Scale posts are the highest posts in the service and selection for promotion and appointment on that basis in the service has to be made on the basis of merit alone and not on the basis of seniority cum merit in the proportion of 50:50.[591 G] J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of U. P. and Ors. ; ; Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India and Ors.
|
ivil Appeal No. 1440 of 1986.
From the Judgment and Order dated 30.11.1985 of the Patna High Court in Second Appeal No. 129 of 1983.
Ranjan Diwvedi, A.N. Bardiar and R.S. Sharma for the Appellants.
D. Goburdhan and D.N. Goburdhan for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The plaintiff respondent instituted the suit for possession of the land in Khata No. 19 in village Gauripur in 1968 claiming title under exhibit 2 sale deed dated February 10, 1964 executed in his favour by Mst.
Tetri, the widow of Chhathu Sah, the original owner.
Tetri had earlier executed exhibit 2 A sale deed on 546 February 14, 1959 in favour of her brother 's son Lakhan Sao for a consideration of Rs.600.
She cancelled this deed on July 31, 1962 before transferring the property in favour of the respondent.
By proceeding dated 11.7.1963 obtained mutation in her name and paid rent on 18.7.1963.
The dispute, however, arose over possession of the land between the respondent and Lakhan Sao that led to proceedings under section 145, Cr.
By the order dated March 4, 1966, Lakhan Sao and his brother Gulab Sao the appellants herein were put in possession.
The present suit was thereafter instituted by the respondent for declaration of this title and possession.
The respondent alleged that the deed of 1959 in favour of Lakhan sao was a Farzi Kebala executed without consideration and was not operative and the respondent had acquired valid title under the transfer in his favour.
The suit was resisted denying plaintiff 's title and asserting that the title and possession passed under the deed of 1959.
The Trial Court decreed the suit and the decree was confirmed in appeal.
The High Court set aside the decree and remanded the case to the first appellate court pointing out that the burden to prove that the document of 1959 was farzi in character and remained inoperative clearly lay on the plaintiff and the finding of the first appellate court was vitiated by erroneous conception of law.
After the remand, the appeal was disposed of by the Additional District Judge by judgment dated January 31, 1983 upholding the plaintiff 's title and confirming the decree of the Trial court.
The second appeal filed against that judgment was dismissed in limine by the High Court on 30.11.1985.
This appeal by special leave is directed against that judgment of the High Court.
Shri Ranjan Dwivedi, learned counsel for the appellants, maintained that the first appellate court committed the same error as was pointed out by the High Court earlier in disposing of the appeal and the error thus committed has given rise to a substantial question of law and the High Court failed to exercise the jurisdiction under section 100, C.P.C., in dismissing the appeal in limine.
The original defendant died and his legal representatives are the appellants before this Court.
It was submitted that the Additional District Judge had approached the question as to whether the impugned deed of 1959 is a sham and inoperative transaction by casting the burden on the defendant, in spite of the specific direction in the order of remand.
No fresh evidence had been tendered by the plaintiff to discharge the burden of proving that no consideration passed under the document and that the document was inoperative.
The Court proceeded to examine the 547 evidence tendered by the defendant to arrive at the conclusion and has found fault with the defendant for not proving that consideration passed and the transaction has come into operation.
This approach, according to the learned counsel, has vitiated the finding and resulted in miscarriage of justice.
The submission is that the lower appellate court has discussed the evidence tendered by the defendant and rejected the same.
The respondent 's learned counsel pointed out that the lower appellate court had properly appreciated the evidence applying the correct law as to the burden of proof.
The findings recorded are on the appreciation of the facts and evidence of the case and no question of law did arise and therefore the second appeal has been rightly dismissed.
In the suit based on title the burden was undoubtedly on the plaintiff to prove such title.
When the plaintiff has assailed the earlier deed executed by his vendor in respect of the same land it was for the plaintiff to establish that it was Farzi Kebala and sham transaction unsupported by consideration.
The learned Additional District Judge has proceeded to consider how far this onus which lay heavily on the plaintiff had been discharged.
He referred to the various tests that have been laid down in order to ascertain that a particular deed is a Farzi Kebala.
He considered the relationship between the parties, the evidence relating to the custody of the document, passing of consideration, motive and possession.
It was found that Lakhan Sao and his brother Gulab Sao were closely related to Tetri, that exhibit 2 A sale deed was in the custody of Tetri and it had been produced in Court by the plaintiff.
On the evidence, it was found hat the stamp paper for the document was purchased by the vendor and there was clear indication that the vendee did not take part in the preparation of the document.
He inforred this fact from the circumstance that incorrect particulars had been incorporated in the deed.
He rejected the contention that the documents were surreptitiously obtained by the plaintiff and his vendor.
It was noticed that even after the execution of the deed, Tetri was continued to be in possession.
She moved the authorities for recording her name in Jamabandi and she had paid the rent.
Regarding the motive for the execution of the deed, it was noticed that Mst.
Tetri had debts and the deed was executed to cover the property from the reach of the creditors and without consideration.
The learned Additional District Judge considered the evidence relating to the consideration.
He referred to the evidence of PW 8, the attesting witness and PW 14 the plaintiff.
These witness stated that nothing had been paid as consideration.
As per the recital in the deed an amount of Rs. 500 was a prior payment and Rs.100 was paid in cash at the time of execu 548 tion.
The learned Judge noticed that there was no specific statement regarding the payment of any part of the consideration in cash.
The vendor was dead.
Lakhan Sao, the defendant, avoided the witness box.
The evidence of the parties to the document was not therefore on record.
Gulab Sao, the brother of Lakhan Sao, was examined as DW 11.
His evidence was analysed and was found to be discrepant.
The learned Judge on a consideration of evidence on both sides found that the evidence on the point of payment of consideration by appellant Lakhan Sao is far from satisfactory and the evidence of the appellants is unworthy of credit.
Motive was found to be satisfactorily established as the existence of debts to some creditors was admitted.
On the question of possession, the learned Judge scrutinised the evidence and found that Tetri was in possession even after execution of exhibit 2 A. Having found these ingredients in favour of the plaintiff, the learned Judge concluded that exhibit 2 A executed by Tetri on 14.2.1959 was only Farzi Kebala without any consideration and it created no title and possession to the appellant.
The findings are essentially findings of fact.
If, however, the appellants succeed in showing that in recording the findings of fact, the court had proceeded on a wrong conception of law as to onus, the correctness of the findings has necessarily to be examined.
The only point that has been stressed before us is that lower appellate court has wrongly proceeded on the basis that onus shifted to the defendant to prove the passing of consideration and that the evidence did not establish that fact.
It was maintained that the onus did not shift as the burden was entirely on the plaintiff to prove the fact that document was inoperative and no consideration did pass thereunder.
We have point out earlier that the High Court has set aside the earlier decree pointing out the error committed by the lower appellate court.
This observation made by the High Court has been kept in mind by the Additional District Judge in disposing of the appeal thereafter.
The learned Judge has considered the question of burden on the plaintiff to establish that there had been no consideration.
In examining the question whether the plaintiff had succeeded in proving the negative fact it was open to the court to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could be left out.
On a consideration of the whole evidence, the Court has concluded that there had passed consideration.
This finding cannot, therefore, be said to be vitiated.
It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into evidence, he 549 cannot ask the court not to look at and act on it.
The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the court has to come to a decision on a consideration of all material.
In the present case, the plaintiff proceeded on the basis that the deed executed by his vendor in 1959 was sham unsupported by consideration and it never came into operation thereby pleading the necessary facts in support of his title.
Evidence was tendered to prove what has been alleged.
To counter the claim, the defendants have asserted that the consideration was paid under the deed and counter evidence was tendered.
The entire evidence was fully appreciated by the Court and the findings have been recorded.
We do not agree that any error had been committed by the learned Judge in his approach.
He recorded definite findings on a clear analysis of the entire evidence and the findings are fully supported by the evidence on record.
We do not therefore see any merit in the appeal which is accordingly dismissed.
No costs.
T.N.A. Appeal dismissed.
|
The respondent plaintiff instituted a suit against the appellant defendant for declaration of title and possession of the suit properties on the basis of a sale deed dated February 10, 1964 executed in his favour by Mrs. T.
The appellant defendant also asserted his title and possession under an earlier deed dated February 14, 1959 executed by Mrs. T in his favour.
The respondent contended that the deed of 1959 in favour of the defendant was sham and without any consideration.
The Trial Court decreed the suit and the decree was confirmed in appeal.
The High Court set aside the decree and remanded the case to the first appellate court stating that the burden to prove that the 1959 deed was sham was on the plaintiff.
After the remand, the first appellate court considered the evidence adduced by both sides and upheld the plaintiff 's title and confirmed the decree of the trial court.
The second appeal filed against the judgment was dismissed in limine by the High Court.
In defendant 's appeal to this court it was contended that inspite of specific direction by the High Court in the order of remand that the burden to prove that 1959 deed was sham was on the plaintiff, no fresh evidence was tendered by the plaintiff to discharge the burden and the appellate court proceeded to examine the evidence tendered by the defendant and rejected the same; hence the appellate court committed an error in disposing the appeal which gave rise to a substantial question of law and the High Court failed to exercise its jurisdiction under Section 100 CPC in dismissing the second appeal in limine.
Dismissing the appeal, this Court HELD: 1.
It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into 545 evidence, he cannot ask the court not to look at and act on it.
The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the court has to come to a decision on a consideration of all materials.
[515H; 516A] 2.
In the suit based on title the burden was undoubtedly on the plaintiff to prove such title.
When the plaintiff assailed the earlier deed executed by his vendor in respect of the same land it was for him to establish that it was a Farzi Kebala and sham transaction unsupported by consideration.
But in examining the question whether the plaintiff had succeeded in proving the negative fact it was open to the court to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could be left out.
The plaintiff proceeded on the basis that the deed executed by his vendor in 1959 was sham unsupported by consideration and it never came into operation thereby pleading the necessary facts in support of his title.
Evidence was tendered to prove what has alleged.
To counter the claim, the defendants have asserted that the consideration was paid under the deed and counter evidence was tendered.
The entire evidence was fully apprecited by the Appellate Court and the findings recorded.
Thus the Appellate Court recorded definite findings on a clear analysis of the entire evidence and the findings are fully supported by the evidence on record.
Therefore, no error had been committed by the learned Judge in his approach.
[597C D; 599B C]
|
Civil Appeal No. 195 of 1978.
From the Judgment and Order dated 10.8.1976 of the Delhi High Court in C.R. No. 354 of 1975.
Dr. Y.S. Chitale, K.B. Rohatagi, S.K. Dhingra and Shashank Shekhar for the Appellants.
V.C. Mahajan, R.B. Mishra, C.V.S. Rao and S.N. Terdal for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
This appeal by special leave is directed against the judgment of Delhi High Court dated 10.8.1976 in Civil Revision No. 354 of 1975.
Agricultural land measuring 78 bighas and 14 biswas belonging to the appellants situated in village Garhi Peeran was acquired under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act ').
The Land Acquisition Collector passed an award on 10.10.1967 allowing compensation for land in block 'A ' @ Rs. 2300 per bigha and in block 'B ' @ Rs. 1200 per bigha.
The claimants/appellants submitted an application under Sec. 18 of the Act for making a reference to the Court.
The Collector made a reference to the Court in pursuance to the said application submitted by the appellants.
The Additional District Judge by Judgment dated 15.1.1971 increased the amount of compensation to Rs.4,000 per bigha for land in block 'A ' and Rs.2,500 per bigha for land in block 'B '.
The appellants filed an application on 16.1.1971 under Sections 151 153 C.P.C. before the Additional District Judge praying that the land in Khasra Nos. 408, 411, 763, 764, 891, 893, 410, 432, 433, 504, 506, 761, 900, 901, & 904 had not been shown by the Land Acquisition Collector in the statement under Section 19 of the Act although he had sent he names of all the Bhoomidars of the aforesaid land.
The mistake was on the part of the Land Acquisition Collector and the appellants should not suffer on account of the mistake or oversight of the Collector.
It was thus prayed that in the interest of justice the Collector may be directed to file a revised statement under Sec.
19 of the Act giving the details of the whole of the land belonging to the claimants which had been left out on account of accidental slip or omission.
The application was opposed on behalf of the Union of India.
The Additional District Judge after hearing the parties at length, by order dated 18.2.1975 allowed the 652 application and directed the Land Acquisition Collector concerned to furnish the correct statement under Sec.
19 of the Act regarding the land acquired of the appellants.
Aggrieved against the aforesaid order of the Additional District Judge, Union of India filed a revision before the High Court.
The High Court by judgment dated 10.8.1976 allowed the revision and set aside the order of the Additional District Judge dated 18.2.1975.
The appellants have now, come in appeal against the order of the High Court.
We have heard learned counsel for the parties and have perused the record.
There is no manner of dispute that the land acquired was 78 bighas and 14 biswas and the appellants were entitled to the compensation of the entire land.
The Land Acquisition Collector gave an award and the appellants being not satisfied with the amount of compensation submitted an application for making a reference to the Court under Sec. 18 of the Act.
A perusal of the application submitted by the appellants under Sec.
18 of the Act shows that in para (1) it was stated as under: "That the claimants ' land details of which are given in the schedule has been acquired under the aforesaid Award.
The Collector has awarded a very low rate of compensation to which claimants are not satisfied as their claims have not been adequately considered by the Collector.
" Thereafter grounds of reference were stated and ground (9) which is relevant for our purpose is reproduced as under: "9.
That the claimant petitioners claim compensation for the whole of their land at the rate of Rs. 20,000 per bigha, Rs.10,000 for the well and Rs.200 each for each tree.
They further claim Rs.60,000 each for their resettlement as their entire land in the village has been taken away under the acquisition and they have been uprooted.
They also claim 15% solatium and interest at the rate of 6% per annum on the enhanced amount of compensation plus the solatium with effect from 4.3.1963.
" A schedule of land belonging to claimant petitioners was also annexed with the application which is as under: 653 Kh.
Area 898 4 16 899 0 11 417 1 03 431 2 09 407 0 05 405 1 11 507 5 06 514 4 16 515 4 16 520 2 04 406 2 17 416 3 08 etc.
etc The High Court took the view that only those Khasra Nos.
which were specifically mentioned in the schedule could alone be considered for the purpose of enhancement of the claim of compensation and not the entire land acquired.
The area of the above Khasra Nos.
amounted to 34 bighas 2 biswas only though the total area of acquired land amounted to 78 bighas and 14 biswas.
The High Court in this regard took the view that the reference was made by the Collector by sending a statement of the Court of the Additional District Judge under Sec.
19 of the Act.
In this statement only those fields were included which had been listed in the schedule attached to the application under Sec. 18.
The High Court further held that the power of the Collector to make the reference was restricted to what was stated in the claimants ' application for reference under Sec. 18 and does not extend beyond it.
If the claimant, does not include some fields in his reference application, the Collector cannot include it in the statement under Sec. 19.
The High Court further held as under: "In the original reference petition under section 18 by claimants the adjective "whole" was used in relation to the 654 land of the claimants and the words "etc.
" were also used in the schedule.
At the same time, certain fields of the claimants which were the subject matter of the Collector 's award were not included in the reference petition.
There was certainly an ambiguity as to the intention of the claimants as expressed by the reference petition.
The counsel for the Union of India was, therefore, justified in requesting the Additional District Judge to call upon the claimants either to admit the statement sent by the Collector under Section 19 or to file an amended reference petition stating their shares individually.
The Additional District Judge was also justified in asking the counsel for the claimants to examine the preliminary objections and to make a statement.
The power of the Court to call upon the counsel for the claimants to make a statement was derived from Order X, Civil Procedure Code.
Under Rule 2 of Order X, the Court had power to examine a party or his pleader and to record his answer in relation to any material question relating to the reference before it.
Under Order XIV rule 3, the materials on which issues had to be framed by the Court included such statements made by the pleaders of the parties under Order X. Accordingly, we find that the learned Additional District Judge used the statement made by the counsel for the claimants as the basis for dismissing the preliminary objections advanced by the Union of India.
The Counsel for the claimants had authority to make the statement which he did.
The Supreme Court has recently pointed out in Smt.
Jamilabai vs Shankarlal Gulabchand, AIR 1975 S.C. 2202, that the implied authority of the counsel extends not only to make such a statement but even to compromise a suit or to admit a claim.
Had the counsel for the claimants not made the statement there that the Collector 's statement under Section 19 is correct, the Additional District Judge would have been found to call upon the claimants to clarify the schedule to the reference petition so that the Court could know precisely the fields in respect of which enhancement of compensation was claimed.
It is because the claimants ' counsel asked the Court to take the Collector 's statement under Section 19 as correct that the Court decided to investigate only the correctness of the compensation regarding those fields.
" The High Court ultimately took the view that the only conclusion 655 possible was that the enhancement was restricted to the land in dispute and the land in dispute could only be such land in respect of which reference was demanded by the claimants.
In our view the High Court was totally wrong and unnecessarily complicated the matter which seems to us, quite simple.
It is an admitted position that 78 bighas and 14 biswas of land belonging to the appellants was acquired and the Land Acquisition Collector had given an award @ Rs.2,300 per bigha for block 'A ' and Rs.1,200 per bigha for block 'B '.
The appellants were not satisfied with the above rate of compensation and they had moved an application for making a reference under Sec. 18 of the Act.
In the application it was clearly mentioned that the Collector had awarded a very low rate of compensation to which the claimants were not satisfied.
In ground No. 9 the claimants/petitioners had mentioned that they were claiming compensation for the whole of their land @ Rs.20,000 per bigha.
That apart in the schedule also some khasra Nos.
were mentioned specifically but in the end the words used were 'etc.
etc '.
The Additional District Judge had passed the order on 15.1.1971 and immediately on the next day i.e. 16.1.1971 the appellants had submitted the application under Secs.
151 153 C.P.C. for correcting the mistake.
The Additional District Judge who was seized of the matter allowed the said application by his order dated 18.2.1975.
Thus from a perusal of the application filed under Sec.
18 of the Act alongwith the schedule we are fully satisfied that the appellants were claiming an enhancement in the compensation in respect of the entire land acquired and there was no question of asking for a reference for a limited portion of land measuring 34 bighas and 2 bigwas only.
The High Court unnecessarily went into the question of some statement made by the learned counsel for the appellants before the Additional District Judge and in examining its validity under Order X of the C.P.C. It was a simple matter to be decided on the basis of factual statements made in the application and we are fully convinced that the appellants had sought a reference for the entire land acquired and there was no reason whatsoever in leaving out some portion of the land when the grievance of the appellants was for enhancing the compensation which was awarded at a low rate.
The appellants were not required to pay any Court fees ad valorem on a prayer for enhancement of compensation while moving an application to the Collector for making a reference to the Court under Sec. 18 of the Act.
Learned counsel for the Union of India was unable to give any plausible explanation which might have persuaded the appellants to have left a large portion of the land in the application filed under Sec.
18 of the Act from claiming enhancement in the amount of compensation.
656 In order to appreciate the controversy we would like to Secs.
18 & 19 of the Act which are reproduced as under: Sec. 18.
Reference to Court: (1) Any person interested who has not accepted the award may by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made, (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector 's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under Sec.
12, sub section (2), or within six months from the date of the Collector 's award, whichever period shall first expire.
19 Collector 's statement to the Court (1) In making the reference, the Collector shall state for the information of the Court, in writing under his hand, (a) the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon; (b) the names of the persons whom he has reason to think interested in such land, (c) the amount awarded for damages and paid or tendered under section 5 and 17, or either of them, and the amount of compensation awarded under section 11;and (d) if the objection be to the amount of the compensation, 657 grounds on which the amount of compensation was determined.
(2) To the said statement shall be attached a schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by the parties interested respectively.
" Under Sec. 18 of the Act the only requirement for the person interested who had not accepted the award was to move a written application to the Collector requiring that the matter be referred for the determination of the Court.
One of the grounds for the accepting the award was the amount of compensation.
Once such application was moved it was the duty of the Collector to make a reference to the Court.
Under Sec.
19 of the Act while making the reference the Collector was required to state for the information of the Court the particulars as mentioned in clauses (a) to (d) of sub Sec.
(1) of Sec. 19 of the Act.
Thus it was the duty of the Collector to mention not only the situation and extent of land but even particulars of any trees, buildings or standing crops thereon.
The agriculturist whose land is acquired may not be fully conversant with the khasra No. or area as entered in the Revenue records and the Union of India or the State acquiring such land should not be allowed to take any advantage of such ignorance of the agriculturists.
Once an application is moved for making a reference under Sec.
18 of the Act it becomes the duty of the Collector to send full information to the Court regarding the entire land acquired and it is thereafter the duty of the Court to decide the matter in accordance with law.
Thus looking into the matter from any angle, we are fully satisfied that the Additional District Judge was justified in allowing the application filed by the appellants and the High Court committed an error in deciding the matter with a wrong approach and in a technical manner.
In the result we allow this appeal, set aside the order of the High Court dated 10.8.1976 and uphold the order of the Additional District Judge dated 15.1.1971, with costs.
Appeal allowed.
|
The lands belonging to the appellants were acquired and they were awarded compensation for their lands.
Being dissatisfied with the compensation they made an application for a reference to the Court under section 18 of the Land Acquisition Act, 1894.
The Collector made a reference to the Additional District Judge and in its statement under Section 19 the Collector included only those lands which were included by the appellants in their application for reference under section 18.
The appellants filed an application before the Additional District Judge under section 151 153 of the Code of Civil Procedure for a direction to the Collector to file a revised statement giving the details of the whole of their lands acquired for the purposes of claim of enhanced compensation.
The Additional District Judge directed the Collector to furnish a correct statement under section 19.
Against the order of the Additional District Judge the Union of India filed a revision petition before the High Court, which allowed the petition by holding that the power of the Collector to make a reference was restricted to what was stated by the appellants in their application for reference and only those Khasra Nos.
which were specifically mentioned in the Schedule annexed with the application under section 18 could be considered for the purposes of enhancement of the claim of compensation and not the entire land acquired.
Hence this appeal against the order of the High Court.
650 Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
Under Section 18 of the Land Acquisition Act, 1894 the only requirement for the person interested who has not accepted the award is to move a written application to the Collector requiring that the matter be referred for the determination of the Court.
One of the grounds for not accepting the award is the amount of compensation.
Once such application is moved it is the duty of the Collector to make a reference to the Court.
Under section 19 of the Act while making the reference the Collector is required to state for the information of the Court the particulars as mentioned in clause (a) to (d) of sub section (1) of Section 19 of the Act.
Thus it is the duty of the Collector to mention not only the situation and extent of land but even particulars of any trees, buildings or standing crops thereon.
The agriculturist whose land is acquired may not be fully conversant with the Khasra No. or area as entered in the Revenue records and the Union of India or the State acquiring such land cannot be allowed to take any advantage of such ignorance of the agriculturists.
Once an application is moved for making a reference under section 18 of the Act it becomes the duty of the Collector to send full information to the Court regarding the entire land acquired and it is thereafter the duty of the Court to decide the matter in accordance with law.
[657B E] 2.
From a perusal of the application filed under Section 18 of the Act along with the Schedule annexed therewith it is clear that the appellants were claiming an enhancement in the compensation in respect of the entire land acquired and there was no question of asking for a reference for a limited portion of land.
The appellants were not required to pay any Court fees ad valorem on a prayer for enhancement of compensation while moving an application to the Collector for making a reference to the Court under section 18 of the Act.
The High Court unnecessarily went into the question of some statement made by the learned counsel for the appellants before the Additional District Judge and examining its validity under Order X of the Code of Civil Procedure and thus committed an error in deciding the matter with a wrong approach and in a technical manner.
[655E, F G, 657F] Smt Jamilabai vs Shankarlal Gulabchand, ; ; cited.
|
ivil Appeal No. 2846 of 1989.
From the Judgment and Order dated 24.4.1989 of the Bombay High Court in W.P.No. 4118 of 1986.
H.S. Guru Raja Rao, section Markandeya and Ms. C. Markandeya, for the Appellant.
L.A. Kriplani and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the Judgment and Order of the High Court of Bombay dated 24.4.1989 in Writ Petition No. 4118 of 1986 dismissing the petition.
The second respondent Shyam Cooperative Housing Society Ltd. was a tenant co partnership cooperative society (for short, `the 597 Society ') and Panjumal H. Advani late father of the first respondent (for short, `Advani ') was its tenant co partner member.
By an application dated 10.6.1969, Advani obtained permission of the Society to induct the appellant temporarily into his flat and accordingly, the appellant took on rent from Advani flat No. 24, Block No. 1,second floor, Nanik Niwas, situate at Bhulabhai Desai Road, Bombay (for short, `the flat ') on a monthly rent of Rs. 1,000 (Rupees one thousand) on 10.6.1969.
On the same date the appellant, under the Society 's rules, applied for its nominal membership stating, inter alia, that he intended to take the flat for temporary use and occupation; that he would not claim any right of permanent nature; and that he would vacate the flat on receipt of notice thereof.
By an agreement of leave and licence dated 11.6.1969 entered into between the appellant and Advani, the appellant took exclusive possession of the flat.
The agreement was for a period of 11 months and was renewable for 2 further periods of 11 months each.
Vide Resolution No. 208 dated 13.6.1969, the Managing Committee of the Society granted the permission.
By letter dated 22.1.1972 Advani purported to terminate the licence with effect from 10.3.1972 and asked the appellant to vacate the flat and the appellant having not acceded to the request, Advani informed the Society, which, vide letter dated 22.2.1972 required the appellant to vacate the flat and to deliver possession thereof to Advani on or before the 10th March, 1972.
The appellant instead of vacating the flat filed an application in the Court of Small Causes, Bombay on 13.3.1972 for fixation of its standard rent.
In April 1972, Advani and the Society raised a dispute under section 91 of the Maharashtra Cooperative Societies Act to recover possession from the appellant who in turn filed declaratory suit No. 989/5305 of 1972 in the Court of Small Causes, Bombay on 10.11.1972 seeking a declaration that he was the tenant of the flat, with an interim application for stay of the proceeding till the disposal of his application for fixation of standard rent; but that application was rejected and the appellant was thereafter unsuccessful in the High Court which was dismissed on 7.9.1977.
The learned Judge of the IInd Cooperative Court, Greater Bombay by his Judgment dated 6.3.1985 dismissed the suit holding that the appellant was a licensee and not a tenant, but the Society was an idle party and had acted in collusion with Advani to vacate the appellant.
Advani and Society appealed therefrom to the Maharashtra State Cooperative Appellate Court, Bombay in Appeal No. 397 of 1985 which was allowed and the impugned Judgment of the IInd 598 Cooperative Court was set aside on 31.7.1986.
The appellant impugned the appellate order in Writ petition No. 4118 of 1986 in the High Court of Judicature at Bombay, contending, inter alia, that the agreement between the appellant and Advani, though styled as a leave and licence, was a lease; that section 91 of the Maharashtra Cooperative Societies Act, 1960 was not attracted and could not have been invoked by Advani and the Society; and that section 91 itself was ultra vires the Article 14 of the Constitution of India to the extent it tried to reach persons who were not members of cooperative societies.
The High Court, while dismissing the writ petition, inter alia, held that the agreement was of temporary nature and no interest in the flat having been created in favour of the appellant, even though he had exclusive possession, it could not have been a lease; that the alleged collusion between Advani and the Society to evict the appellant was based on conjectures and could not take the matter out of the purview of section 91 of the Cooperative Societies Act which was not ultra vires.
Mr. S.S. Gururaja Rao, the learned counsel for the appellant submits, inter alia, that the agreement dated 11.6.1969 between Advani and the appellant was one of lease with all its ingredients and not one of leave and licence; that the agreement having been a lease the cooperative Court had no jurisdiction in respect thereof and it was the Civil Court envisaged under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 that would have jurisdiction in the matter; and that even assuming that the Cooperative Court had jurisdiction in respect of a leave and licence created under the provisions of the Act, that Court would not have jurisdiction in this matter, the appellant being only a nominal member and not a tenant member of the Society.
Mr. L.A. Kripalani, the learned counsel for the respondents, submits that the agreement was one of leave and licence and not of lease; that in the matter of the agreement the Cooperative Court alone has jurisdiction and no other court; and that being a nominal member of the Society in view of his application for such a membership the appellant would come within the jurisdiction of the Cooperative Court.
The first question to be decided in this appeal, therefore, is 599 whether the agreement dated 11.6.1969 was one of lease or of leave and licence.
In the agreement dated 11.6.1969 the Party of the First part has been called the `licensor ' and the Party of the Second part has been called the `licensees '.
The licensor is stated to be a shareholder and member of the Society.
Its recitals said: "AND WHEREAS the Licensor is the absolute owner of the said flat and whereas the party of the Second part has approached the Party of the First part to allow them the use of the said flat with, fittings, fixtures and furniture lying therein.
AND WHEREAS the Party of the First part has agreed to allow the party of the Second part to use the said flat along with fittings, furniture, fixtures etc.
The following were the relevant terms of the agreement: "1.
The `licensor ' has given the use of his flat No.24, 2nd floor, Nanik Niwas, Block No. 1, Bhulabhai Desai Road on Leave and Licence basis.
The licence in the initial stage is for the period of 11 months to be renewed by another period of 11 months and a second option of 11 months also, to make up the period of 33 months.
The Licensees shall pay compensation of Rs. 1,000 (Rupees one thousand only) per month to the `licensor ' the use of the said flat along with fittings, fixtures and furniture lying therein more fully described in the schedule herewith attached; This compensation payable by the said `Licensees ' to the said `Licensor ' shall include all the charges and taxes leviable either by the Shyam Cooperative Housing Society Ltd., Bombay 26 or by the Bombay Municipal Corporation or by any local or State authorities except the changes which are specially mentioned hereunder.
xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 600 9.
It is agreed by this agreement that only `Licensee ' is intended to be given to the `Licensees ' to use the flat and fixtures, fittings, furniture etc.
more fully described in the schedule attached herewith and the `Licensees ' will at no time claim tenancy or sub tenancy of the premises.
The premises are in Nanik Niwas, Block No.1, Second Floor, Flat No.24, of the Shyam Cooperative Housing Society Ltd., and the rules regulations and bye laws of the said Society do not permit any tenancy or sub tenancy being created in respect of the premises.
xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 22.
That the `Licensee ' will not surrender their rights under this agreement in favour of anyone else except the `Licensors '.
That the `Licensees ' shall observe all rules, regulations, and by laws of the Shyam Cooperative Society as nominal members during the period of this licence.
From the above recitals and the terms and conditions there is no doubt that ex facie it is one of leave and licence for use of the flat and fixtures, fittings, furniture etc.
and that the licensee would at no time claim tenancy or sub tenancy in respect of the flat.
There is also no doubt that in his application for nominal membership, the appellant stated that he intended to take the flat for temporary use and occupation and that he would not claim any right of permanent nature.
In the Managing Committee Resolution No.208 dated 13.6.1969, the appellant was admitted as a nominal member of the Society and was permitted to temporarily occupy the flat.
Thus, there appears to be no room for contending, contrary to the terms of the agreement, that the agreement was a lease and the appellant was a tenant of Advani, as such the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as `the Rent Act ', was applicable to him.
However, relying on Antoniades vs Villiers and Anr., reported in ; , it is submitted for the appellant that he having been given exclusive possession of the flat for a time, the agreement must be construed as a lease and him as a tenant.
In that case the respondent let a flat to the appellants, a young unmarried couple, under separate but identical agreements termed `licenses ', which were executed contemporaneously and stipulated with reiterated emphasis that the appellants were not to have exclusive possession.
In particular, 601 by clause 16, that agreement stated that the licensor shall be entitled at any time to use the rooms together with the licensee and permit other persons to use all of the rooms together with the licensee and further stated that the real intention of the parties in all the circumstances was to create a licence which did not come under the Rent Acts.
The rental payable was 87 pounds per month by each occupant and the agreements were determinable by one month 's notice by either party.
The respondent never attempted to use any of the rooms or authorised any other persons to use the rooms.
In July 1986 the respondent gave the appellants a notice to quit and applied to the court for an order for possession, but his claim was dismissed on the ground that the appellants were tenants who were entitled to the protection of the Rent Acts.
The respondent appealed to the Court of Appeal, which allowed his appeal.
The appellants having appealed to the House of Lords it was held that the agreements were interdependent on one another and were therefore to be read together as constituting one single transaction.
Since it was the intention of the two appellants to occupy the flat as man and wife and since that intention was known to the respondent, the true nature of the arrangement was to create a joint tenancy and the purported retention by the respondent of the right to share the occupation of the small flat with the appellants or to introduce an indefinite number of third parties to do so was clearly a pretence to deprive them of the protection of the Rent Acts.
It followed that the agreements created a joint tenancy and not a licence, and the appeal would therefore be allowed.
It may be noted that in the above case there was no obligation of or relation to any cooperative society and laws governing members thereof, whereas in the instant case admittedly Advanai was a tenant co partner member of the Society and the appellant by virtue of the agreement of licence was also admitted to nominal membership accepting his statement in his application.
While interpreting the agreement we have also to see what transpired before and after the agreement.
Ex praecedentibus et consequentibus optima bit interpretation.
The best interpretation is made from the context.
"It is a true rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done.
" As was said in N.E. Railway vs Hastings, "The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into 602 harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible.
In the agreement the intention to create a licence is clear.
Positively it speaks of a licence for the use of the flat and negatively that the licensee would not claim any tenancy or sub tenancy.
That the intention of the parties was to create only a licence and not a lease is clear from the tenor of the agreement.
True, by mere use of the word lease or licence the correct categorisation of an instrument under law cannot be affected.
What was given to the licensee was to use of the flat with furniture, fittings etc., which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time.
It is true, where the ingredients of a lease are present and the licensee is according to law, a tenant, he ought to be given the benefit of the Rent Act.
As was held in Board of Revenue etc.
vs A.M. Ansari etc.
; , , it is the substance of the agreement between the parties which is a decisive consideration on the question whether a particular grant amounts to a lease or a licence.
In Tarkeshwar Sio Thakur Jiu vs Dar Dass Dey & Co. & Ors., ; ; , the document though named as licence was construed as a lease.
If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof it will be a licence.
If there is a transfer of interest in law and exclusive possession is given to the grantee then it is a lease.
Thus, exclusive possession by itself will not amount to creation of interest.
Exclusive possession by itself would not militate against the concept of a licence, if the circumstances negative any intention to create a tenancy.
Following Sohan Lal Naraindas vs Laxmidas Raghunath Gadit, , we reiterate that the intention of the parties to an agreement has to be gathered from the terms of the agreement construed in the context of the surrounding, antecedent and consequent circumstances.
The crucial test would be what the parties intended.
If infact it was intended to create an interest in the property, it would be a lease, if it did not, it would be a licence.
In determining whether the agreement was a lease or licence, the test of exclusive possession, though of significance, is not decisive.
Interest for this purpose means a right to have the advantage accruing from the premises or a right in the nature of property in the premises but less than title.
603 Lease has been defined in section 105 of the as under: "A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
" The essential elements of a lease are: 1.
the parties 2.
the subject matter, or immovable property 3.
the demise, or partial transfer 4.
the term, or period 5.
the consideration, or rent.
The relationship of lessor and lessee is one of contract.
In Bacon 's Abridgement, a lease is defined as "a contract between the lessor and the lessee for the possession and profits of land, etc., on the one side and recompense by rent or other consideration on the other.
" Hence it has been held that "a mere demand for rent is not sufficient to create the relationship of landlord and tenant which is a matter of contract assented to by both parties.
" When the agreement vests in the lessee a right of possession for a certain time it operates as a conveyance or transfer and is a lease.
The section defines a lease as a partial transfer, i.e., a transfer of a right of enjoyment for a certain time.
This Court has held that a renewal of a lease is really grant of a fresh lease though it is called a renewal because it postulates the existence of a prior lease.
Where the initial term was, say one year, it could not co exist with a renewal of that very lease within one year.
Renewal could take place only on the expiry of the initial lease, and not before.
The intention of the parties in making the agreement is determinative of the question whether it was a lease or licence.
In Halsbury 's Laws of England, 4th Edn.
27, at paragraph 6, on General Principles 604 for determining whether agreement creates lease or a licence we read: "In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive considerations is the intention of the parties.
The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such.
The parties ' relationship is determined by law on a consideration of all relevant provisions of the agreement; and an agreement labelled by the parties to it as a `licence ' will still be held to create a tenancy if the substance of the agreement conflicts with that label.
Similarly, the use of operative words (`let ', `lessor ' etc.) which are appropriate to a lease will not prevent the agreement from conferring only a licence if from the whole document it appears that it was intended merely to confer a licence.
Primarily the court is concerned to see whether the parties to the agreement intend to create an arrangement personal in its nature or not, so that the assignability of the grantee 's interest, the nature of the land and the grantor 's capacity to grant a lease will all be relevant considerations in assessing what is the nature of the interest created by the transaction.
In the absence of any formal document the parties ' intention must be inferred from the circumstances and the parties ' conduct.
" It has been submitted for the appellant that the very fact of exclusive possession of the flat being given to the appellant was sufficient to make him lessee and Advani his landlord.
We do not agree with the submission in an unqualified form.
There have been cases where exclusive possession has been given outside the Rent Act.
In Isaac vs Hotel De Paris, Ltd., [1960] (1) All E.R.348, the respondent company owning the hotel de Paris where the lessees of another building called the P.Hotel, it was held that the respondent company were entitled to an order for possession because the relationships between the parties was not that of landlord and tenant but of licensor and licensee, even though there was exclusive possession by the appellant and the acceptance of the amount of the rent by the respondent company, the circumstances and the conduct of the parties showing that all that was intended was that the appellant should have a personal privilege of running a night bar at the P.Hotel with no interest 605 in the land at all, and this privilege came to an end with the notice of May, 1956 and that after the notice the appellant remained in occupation at sufferance, and, in the circumstances, the acceptance of rent by the respondent company did not waive their right to immediate possession.
It was observed that there were many cases in the books where exclusive possession had been given of premises outside the Rent Restriction Acts and yet there had been held to be no tenancy.
Lord Denning quoted from Booker vs
Palmer, (677): "There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationship where the circumstances and the conduct of the parties negative any intention of the kind. ' The following passaged was also cited with approval: "It is clear from the authorities that the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first importance, the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered.
" On the question of nature and effect of the grant of exclusive possession in paragraph 7 of Halsbury 's Laws of England, 4th Edn., Vol.27, we read: "The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance, although of lesser significance than the intention of the parties.
In deciding whether a grantee is entitled to exclusive posession regard must be had to the substance of the agreement.
In order to give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession.
However, the grant of an exclusive right to a benefit can be inferred only from language 606 which is clear and explicit.
If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease.
" We may now examine the position of the appellant under the Rent Act.
The Rent Act has not defined a `lease '.
As defined in section 5(11) `tenant ' means any person by whom or on whose account rent is payable for any premises and includes (a) such sub tenants and other persons as have derived title under a tenant before the 1st day of February, 1973; (aa) any person to whom interest in premises has been assigned or transferred as permitted or deemed to be permitted, under section 15; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the 1st day of February, 1973; (bb) such licensees as are deemed to be tenants for the purpose of this Act by section 15A; (c) xxx xxx xxx xxx xxx xxx" Thus the above sub section (bb) read with section 15A of the Rent Act makes the `tenant ' one of status and not of contract.
the licensee has been conferred the status of a tenat.
This reminds us of what Sir Henry Maine observed in Ancient Law.
"The movement of progressive societies had been from status to contract".
But Lord Simmonds pointed out in Johnson vs Merston, , that since the days of Maine, the movement of the progressive societies in various fields, has been almost the reverse, that is, from contract to status.
With acute dearth of accommodation and dire need for it people may agree to a pretence or unreasonable term from which law alone can protect them and render justice to the parties.
As defined in the section 5(4A) of the Rent Act `licensee ', in respect of any premises or any part thereof means: 607 "The person who is in occupation of the premises or such part as the case may be under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co operative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licensor, or a person conducting a running business belonging to the licensor or a person having any accommodation for rendering or carrying on medical or para medical services or activities in or near a nursing home, hospital or sanatorium, or a person having any accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, sanatorium, dharamshala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of the exigencies of service or provision of a residence attached to his or her post or office is temporarily not occupying the premises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises, or person having accommodation in any premises or part thereof for conducting a canteen, creche,dispensary or other services as amenities by any undertaking or institution; and the expressions `licence ', `licensor ' and `premises given on licence ' shall be construed accordingly.
" The above definition is comprehensive one.
A licence is a power or authority to do some act which, without such authority, could not lawfully be done.
In the context of an immovable property a licence is an authority to do an act which would otherwise be a trespass.
It passes no interest, and does not amount to a demise, nor does it give the licensee an exclusive right to the use of the property.
The definition in the Rent Act includes any person in occupation under a subsisting agreement for licence given for a licence fee or charge of any premises or part thereof in a building vesting in or lease to a cooperative housing society registered or deemed to be registered under the 608 Maharashtra Cooperative Societies Act, 1960.
The appellant would, otherwise, be included within this definition.
But he has no subsisting licence, the same having been cancelled on 10.3.72.
Section 15A of the Rent Act which was inserted by Maharashtra Act 17 of 1973 provides: "Certain licensee in occupation on 1st February 1973 to become tenants.
(1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation .
(2) The provisions of sub section (1) shall not affect in any manner the operation of sub section (1) of section 15 after the date aforesaid.
" Thus, section 15A read with section 5(11) (bb) of the Rent Act makes the tenant one of status rather than of contract.
Intention to create a licence as defined in that Act if the other requirements fulfilled would, therefore, be enough to confer that status from the specified date.
The above provisions applies to person in occupation of any premises or part thereof which is not less than a room, as a licensee he shall on the date be deemed to have become a tenant on the first day of February 1973.
The licence of the appellant was cancelled on 10.3.72.
Again, in the instant agreement what has been given is only the use of the flat and the furnitures and fittings.
`Licence ' had earlier been defined in section 52 of the : "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or 609 an interest in the property, the right is called a license.
" In view of licence of the appellant having been cancelled on 10.3.72, licence as defined by the Rent Act itself, would not apply, to the appellant 's case.
He would, therefore, not be protected under section 15A of the Rent Act.
The learned counsel for the appellant submits that due to scarcity of accommodation, the appellant had to accept the terms that he would not, by virtue of the agreement of leave and licence, claim any right of tenancy or sub tenancy and that should not be a bar to his being given the benefit under the Rent Act.
However, considering the facts and circumstances of this case we are not inclined to hold that the appellant should not be bound by the expressed intention in the agreement.
In Chandavarkar Sita Ratna Rao vs Ashalata S.Guram, ; , this Court held that licence was a privilege and not an interest in property.
A tenant, whose interest in the tenancy is determined for any reason but who is protected by the statute, was entitled to create a licence in favour of another person until a decree of eviction has been passed against him.
A statutory tenant was in the same position as a contractual tenant until a decree for eviction is passed against him and the rights of contractual tenant including the right to create licence even if he was transferor of an interest which was not in fact the transfer of interest.
If the licence have been created before February 1, 1973, the licensee must, by the express terms of section 15A of the Rent Act be deemed to be a tenant and he should, subject to provisions of the said Act be deemed tenant of the landlord on the terms and conditions of the agreement consistent with the provisions of the Act.
At paragraph 58 of the report it was observed that there was no reason and there was nothing in the Rent Act or the Statement of Objects and Reasons to indicate that restricted meaning to the expression "licence" should be given.
As the amended section said that whoever was in possession as a licensee should be deemed to have become for the purpose of the Act the tenant of the landlord and there was no warrant to restrict the ordinary meaning of that expression.
If the restricted meaning was given then the apparent scheme or the purpose for introduction of the amendment would be defeated at least to a large section of licensees who were contemplated to be protected, as the objects of the Act sought to do.
The Rent Act was amended by Maharashtra Act 17 of 1973.
By 610 the Amending Act section 5(4A) and section 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement of February 1, 1973 the status and protection of a tenant under the Rent Act.
Section 15A required that the occupant must be in occupation of the premises as a licensee as defined in section 5(4A) on the 1st of February, 1973.
If he be such a licensee, the non obstinate clause of section 15A (1) gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract.
In other words, even as against the express terms of the subsisting contract of licence,the licensee would enjoy the benefits of section 15A.
But if he was not a licensee under a subsisting agreement on the 1st of February, 1973, then he did not get the advantage of the amending provision of the Rent Act.
A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continued to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises.
Such a person by no stretch of imagination could be called a licensee.
In D.H. Maniar and Ors.
vs Waman Laxman Kudav; , , this position was made clear.
The appellant in the instant case was not in possession as a licensee on 1st of February, 1973, the licence having been terminated prior to that date.
This takes us to the next question, namely, whether the Cooperative Court had jurisdiction over the matter.
Section 91(1) of the Maharashtra Cooperative Societies Act which deals with disputes, provides: "(1) Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution, elections of the committee or its officers other than the elections of committees of the specified societies including its officers, conduct of general meetings, management of business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated or by a creditor of the society, to a cooperative Court if both the parties thereto are one or other of the following: (a) a society its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society; 611 (b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society or a person who claims to be a member of the society.
xxx xxx xxx xxx xxx xxx Under the above provision the matter of eviction of the appellant by the tenant co partner member of the society can be said to be touching the business of the society.
In Deccan Merchants Cooperative Bank Ltd. vs M/s Dalichand Jugraj Jain & Ors., [1969] (1) SCR 887, it has been held that the word "business" in the expression `touching the business of a society ' in section 91 (1) does not mean affairs of the society.
It has been used here in a narrower sense and means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye laws.
It was, however, held that section 91 of the Maharashtra Cooperative Societies Act did not affect the provisions of section 26 of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947.
Although both these provisions start by excluding "anything contained in any other law", two Acts could be harmonized best by holding that in matters covered by the Rent Act, its provisions rather than the provisions of the Maharashtra Cooperative Societies Act, should apply.
The latter Act was passed in the main, to shorten litigation, lessen its cost and to provide a summary procedure for the determination of the disputes relating to internal management of the society.
But under the Rent Act a different social objective was intended to be achieved and for achieving that social objective it was necessary that the dispute between the landlord and the tenant should be dealt with by the courts set up under the Rent Act and in accordance with the special provisions of that Act and this social objective did not impinge on the objective underlying the Maharashtra Cooperative Societies Act.
In O.N.Bhatnagar vs Smt.
Rukibai Narsindas & Ors.
, ; , which was also case of Shyam Cooperative Housing Society Limited, it was held that the claim of the society together with such member for ejectment of a person who was permitted to occupy having become a nominal member thereof, upon revocation of licence was a dispute falling within the purview of section 1 of the Maharashtra Cooperative Societies Act, 1960 and that the proceeding under section 91(1) of the Maharashtra Cooperative Societies Act, 1960 were 612 not barred by the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The two Acts, could be best harmonized by holding that the matters covered by the Rent Acts, its provisions, rather than the provisions of the Cooperative Societies Act should apply.
But where the parties admittedly did not stand in the jural relationship of landlord and tenant, as their dispute would be governed by section 91(1) of the Societies Act and that the appellant by virtue of his being a nominal member, acquired a right to occupy the flat as a licensee, but his rights were inchoate,.
In the facts of the instant case upon the terms of sections 5(4A) and 15A of the Rent Act, it is clear that the appellant was not entitled to the protection of section 15A.
The sine qua non for the applicability of section 15A of the Rent Act was that a licensee must be in occupation as on February 1, 1973 under a subsisting licence.
It is not disputed that the appellant did not answer that description since the agreement of leave and licence in his favour admittedly stood terminated by the notice of the respondent No. 1 on 10.3.1972.
That being so, the appellant was nothing but a rank trespasser and was not entitled to the protection of section 15A of the Rent Act and could not, therefore, plead the bar of section 28(1) thereof.
In Hindustan Petroleum Corporation Ltd. & Anr.
vs Shyam Cooperative Housing Society & Ors., ; , at paragraph 14 it was held under the facts of that case that the petitioner Hindustan Petroleum Corporation Ltd. was clearly protected under section 15A of the Rent Act and in that view of the matter the jurisdiction of the Registrar under Section 91(1) of the Cooperative Societies Act would be as laid down in O.N. Bhatnagar 's case (supra).
The proceedings initiated under section 91 were accordingly quashed.
This case is, therefore, distinguishable on facts.
Following Bhatnagar 's case in Smt.
Krishna Rajpal Bhatia and Ors.
vs Miss Leela H. Advani & Ors., ; , where a tenant co partner member of a registered co partnership type cooperative housing society inducting another person into her flat for a term of eleven months subject to renewal of the term from time to time after obtaining society 's permission and after the person so inducted becoming a nominal member of the society and the agreement between the parties embodied in usual standard form of leave and licence, it was held that the tenant co partner member only created a licence and not a lease and that the Maharashtra Cooperative Societies Act, 1960 was applicable.
There also the nominal membership of the society was obtained in terms of the society 's bye laws and the licence was 613 terminated by notice after expiry of the term, but the occupant was not vacating.
Claim made by the co partner under section 91 of the Maharashtra Cooperative Societies Act, 1960 for ejectment of the occupant was held to constitute a `dispute touching the business of a society ' within the meaning of section 91 and hence the Registrar 's jurisdiction to entertain the claim was held not to have been barred under section 28 of the Rent Act.
Applying the law laid down in the above decisions we are of the view that the instant dispute is one envisaged in section 91 of the Maharashtra Cooperative Societies Act and the Cooperative Courts rightly exercised jurisdiction.
The next question, namely, section 91 is ultra vires the Article 14 of the Constitution of India to the extent it tries to reach persons who are not members is not tenable, inasmuch as the appellant is involved in a dispute touching the business of the Society and he was a nominal member of the Society by dint of his agreement of leave and licence and he was made so on his application.
Result is that this appeal fails and it is dismissed, but under the facts and circumstances of the case without any order as to costs.
Interim orders stand vacated.
R.P. Appeal dismissed.
|
The second respondent was a tenant copartnership co operative Housing Society and father of the first respondent was its tenant co partner member.
By an application dated 10.6.1969 he sought permission of the society to temporarily induct the appellant into his flat.
On the same date the appellant applied to the said Society for its nominal membership stating that he intended to take the flat for temporary use and occupation, that he would not claim any right of permanent nature and that on receipt of notice he would vacate the flat.
By an agreement of leave and licence dated 11.6.1969, the father of respondent No. 1 (licensor)gave use of the flat with its furniture and fittings to the appellant (licensee) on Rs. 1,000 per month as compensation for use and occupation for a period of 11 months with a facility of renewal of the agreement for two such further periods.
The Managing Committee of the Society, by its Resolution dated 13.6.1969.
I granted the permission.
593 The licensor by letter dated 22.1.1972 purported to terminate the licence w.e.f. 10.3.1972, and asked the appellant to vacate the flat, but the latter declined to do so.
On receiving intimation from the licensor, the Society, by its letter dated 22.2.1972, required the appellant to vacate the flat and deliver its possession to the licenser before the stipulated date, but in vain.
Instead, the appellant on 13.3.1972 applied to the Court of Small Causes, Bombay for fixation of standard rent of flat.
In April 1972 the licensor and the Society raised a dispute under section 91 of the Maharashtra Co operative Societies Act, 1960 to recover possession from the appellant,who in turn filed a suit in the Court of Small Causes, Bombay for declaration that he was tenant of the flat.
He also filed an interim application for stay of the dispute proceeding till disposal of his application for fixation of standard rent, which was rejected and his writ petition against the said order was also dismissed by the High Court on 7.9.1977.
The Co operative Court, Bombay dismissed the dispute proceeding holding that the appellant was a licensee and not a tenant but the society was an idle party which acted in collusion with the licensor to evict the appellant.
On appeal by the licenser and the Society, the Maharashtra State Co operative Appellate Court set aside the order of the Co operative Court, against which the appellant filed a writ petition before the High Court contending that the agreement, though style as a leave and licence, was a lease; that section 91 of the Maharashtra Co operative Societies Act was not attracted and could not have been invoked by the respondents; and that section 91 itself was ultra vires article 14 of the Constitution to the extent it tried to reach non members of co operative societies.
The High Court dismissed the writ petition.
Hence the present appeal by special leave.
By Maharashtra Act 17 of 1973, sections 5(4A), and 15 A were introduced in the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947,to confer the status and protection of a tenant on a licensee, who, on the first day of Feb. 1973, had a subsisting agreement and was on that date in occupation of any premises or part thereof, which was not less than a room, as a licensee.
On the question whether:(1) the agreement dated 11.6.1969 was one of leave and licence or if lease, and if it was so, whether the 594 occupant was entitled to benefit of section 15 A of the Rent Act; and (2) the matter was one touching the business of the society so as to attract s.19 of the Maharashtra co operative Societies Act within the jurisdiction of Co operative Courts.
Dismissing the appeal, this Court HELD: 1.1 By mere use of the word lease or licence the correct categorisation of an instrument under law cannot be affected.
Whether a particular grant amounts to lease or a licence, depends on its substance.
If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence.
If there is a transfer of interest in law and exclusive possession is given to the grantee or where the ingredients of a lease are present and the licensee is, according to law, a tenant, then it is a lease and he ought to be given benefit of the Rent Act.
[602B E] 1.2 In determining whether the agreement was a lease or licence, the test of exclusive possession, though of significance, is not decisive and exclusive possession itself will not amount to creation of interest nor would it militate against the concept of a licence, if the circumstances negative any intention to create a tenancy.
[602G, E F] 1.3 The intention of the parties in making the agreement is determinative of the question whether it was a lease or licence.
The intention has to be gathered from the terms of the agreement construed in the context of the surrounding, antecedent and consequent circumstances.
The crucial test would be what the parties intended.
If in fact it was intended to create an interest in the property it would be a lease, if it did not, it would be a licence Interest for this purpose means a right to have the advantage accruing from the premises or a right in the nature of property in the premises but less than title.
[603H, 602F H] 2.
In the instant case, it is clear from the tenor of the agreement that the intention of the parties was to create only a licence and not a lease.
Positively it speaks of a licence for the use of the flat and negatively that the licensee would not claim any tenancy or subtenancy.
What was given to the licensee was the use of the flat with furniture, fittings etc., which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time.
[602A C] 595 Board of Revenue etc.
vs A.M. Ansari etc.
; , ; Tarkeshwar Sio Thakur Jiu vs Dar Dass Dey & Co. & Ors., ; , relied on; Sohan Lal Naraindas vs Laxmidas, Raghunath Gadit , followed.
Antoniades vs Villiers and Anr., [1988] (3) All.
E.R. 1058; N.E. Railway vs Hastings, , Isaac vs Hotel De Paris, Ltd. , Booker vs Palmer referred to.
3.1 Section 15A read with section 5(11)(bb) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, makes the tenant one of status rather than of contract.
Intention to create a licence as defined in the Act if the other requirements fulfilled, would, therefore, be enough to confer that status from the specified date.
Section 15A required that the occupant must be in occupation of the premises as a licensee as defined in s.5(4A) on the first day of Feb. 1973.
If he be such a licensee, the non obstante clause of s.15A(1) gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract.
Even as against the express terms of the subsisting contract licence, a person in occupation of any premises or part thereof, which is not less than a room, as a licensee, shall, in view of these provision, be deemed to have become a tenant on the first day of Feb. 1973, and would enjoy the benefits of section 15A.
But if he was not a licensee under a subsisting agreement on the 1st of Feb. 1973, then he did not get the advantage of the amending provision of the Rent Act.
[608E F, 610AB] 3.2 The sine qua non for the applicability of section 15A of the Rent Act was that a licensee must be in occupation as on Feb.1, 1973, under a subsisting licence.
A person continuing in possession after termination, withdrawal or revocation of the licence is a trespasser or a person who has no semblance of any right to continue in occupation of the premises.
Such a person by no stretch of imagination could be called a licensee.
[612B C, 610C] 4.
The appellant would, otherwise, be included in the definition of licensee under section 5(4A) of the Rent Act, but as he had no subsisting licence, the same having stood terminated by notice on 10.3.1972, the licence as defined by the Rent Act itself would not apply to appellant 's case, and he was nothing but a rank trespasser not entitled to the protection of section 15A of the Rent Act and could not, therefore, plead the bar of section 28(1) thereof.[608A, 609A, 612C D] 596 D.H. Maniar and Ors.
vs Waman Laxman Kudav, ; , O.N. Bhatnagar vs Smt.
Rukibai Narsindas & Others, ; , relied on.
Chandavarkar Sita Ratna Rao vs Ashalata section Guram; , , referred to.
Hindustan Petroleum Corporation Ltd. & Anr.
vs Shyam Cooperative Housing Society & Ors, ; , distinguished.
The matter of eviction of the appellant was a dispute touching the business of the society as envisaged by s.91 of the Maharashtra Co operative Societies Act and the Co operative Courts rightly exercised jurisdiction.[611B; 613B] Smt.
Krishna Rajpal Bhatia and Ors.
vs Miss Leela H. Advani & Ors., ; , relied on.
Deccan Merchants Cooperative Bank Ltd. vs M/S Dalichand Jugraj Jain & Ors., [1969] 1 SCR 887 referred to.
Since the appellant was involved in a dispute touching the business of the society of which he was a nominal member, his contention that section 91 of the Maharashtra Co operative Societies Act to the extent it tries to reach persons who are not members is ultra vires article 14 of the Constitution, was not tenable.
[613C D]
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Appeal No. 782 of 1991.
From the Judgment and Order dated 10.7.1990 of the Bombay 484 High Court in Appeal No. 423 of 1987.
Ashok H. Desai, Vinay Tulzapurkar, Raghu Kothare and Rajiv Dutta for the Appeallant.
Soli J. Sorabjee, D.R. Poddar, Ms. Purnima, Atul Sharma, A.V.Palli, E.C.Agrawala and V.B.Joshi for the Respondents.
The Judgments of the Court was delivered by OJHA, J. Special leave granted.
This appeal by special leave has been preferred against the judgment dated 10th July, 1990 of the Bombay High Court in Appeal No. 423 of 1987.
Respondent No. I is a private limited company whereas Respondents 2 to 4 are its Directors.
Respondent No. 1, for setting up a factory, sought financial assistance from the appellant and the appellant sanctioned a loan of Rupees thirty lakhs.
In order to secure the loan Respondent No. 1 executed a deed of mortgage of certain properties on 29th June, 1979 and Respondents 2 to 4 on the same date by executing a deed of guarantee stood surety for repayment of the said loan.
It was a case of personal guarantee only as no property was given in security.
For the sake of brevity the appellant, Respondent No. I and Respondents 2 to 4 shall hereinafter be referred to as the Corporation, the Company and the sureties respectively.
The amount of loan was to be advanced in phases and after the Corporation had advanced a part of the total sanctioned loan, the Company did not want to avail of the balance of the amount as it seems to have lost interest in setting up the factory for reasons with which we are not concerned.
The Corporation consequently called upon the Company to repay the amount already advanced together with interest and on its failure to do so took possession under Section 29 of the (for short the Act) over the industrial concern, a term defined under Section 2(c) of the Act and took steps to realise its outstanding dues by transfer of property in the manner provided therein.
However, notwithstanding advertisement for sale thereof having been made on several occasions the Corporation could not get an offer of more than about Rupees five lakhs.
Having failed to recover the amount due to it in the manner stated above, the Corporation proceeded to recover the same from the sureties whose liability was coextensive and for this purpose it filed a petition in the High Court under Sections 31 and 32 of the Act arraying 485 the Company as Respondent No. I and the sureties as Resondents 2 to 4, with the prayer that "the respondents be jointly and severally ordered and decreed to pay the petitioners the sum of Rs 15,87,391.20 as per particulars hereto annexed and marked exhibit H. with further interest at the rates of 14 1/2% per annum till payment and may further "be ordered to pay to the petitioners costs of the petition".
Thus, according to the relief claimed in the petition the liability of the respondents with regard to the amount payable to the Corporation on the date of making of the petition was for a sum which was more than Rupees fifty thousand which, as will be presently shown, represents maximum amount over which the Bombay City Civil Court has pecuniary jurisdiction.
The respondents contested the petition and raised three pleas in defence: (1) A petition under Sections 31 and 32 of the Act could be filed only in the Bombay City Civil Court and the High Court had no jurisdiction to entertain it, (2) the relief claimed in the petition could not be granted under Sections 31 and 32 of the Act inasmuch as these sections did not contemplate passing of a money decree not only against the principal debtor but also against the sureties; and (3) the provisions in the Act relating to enforcement of the liability of a surety were ultra vires Article 14 of the Constitution.
The learned Single Judge of the High Court before whom the petition came up for hearing did not, in view of his finding on the first two pleas, entertain any argument on the last plea nor has the said plea been raised before us and as such the same does not need to be gone into.
As regards the second plea it was conceded before the learned Single Judge on behalf of the Corporation by its learned counsel that no such money decree could be passed against the Company as was claimed in the petition.
It was, however, asserted that such a decree could be passed as against the sureties.
In this view of the matter the petition was treated and decided as being confined against the sureties only.
In regard to the plea of jurisdiction the learned Single Judge took the view that since an appeal was pending before a Division Bench of the High Court against the judgment of a Single Judge in Misc Petition No. 357 of 1985, Maharashtra State Financial Corporation vs Hindtex Engineers Pvt. Ltd., decided on 3rd December, 1986 (since reported in , in which it had been held that such a petition was maintainable in the High Court, he would proceed to decide the petition on merits on the assumption that he had jurisdiction to entertain it.
On merits, he took the view that no money decree could be passed in a petition under Sections 31 and 32 of the Act 486 even against the sureties and since in the instant case sureties had admittedly not given any security except their personal guarantee the said surety could be enforced only in the ordinary course and not under the special machinery provided under the Act.
The petition was accordingly dismissed.
Aggrieved by the judgment of the learned Single Judge the Corporation preferred an appeal before a Division Bench which has been dismissed by the judgment under appeal.
The Division Bench not only upheld the finding of the Single Judge on merits but also over ruled the decision reported in and held that the High Court had no jurisdiction to entertain a petition under Sections 31 and 32 of the Act.
Shri Ashok Desai, Senior Advocate appearing for the Appellant Corporation has assailed the findings of the High Court in the judgment under appeal both on merits and on the plea about jurisdiction.
Shri Soli J. Sorabjee, Senior Advocate appearing for the respondents has in reply asserted that the findings of the High Court on both the pleas were unassailable.
An application for intervention being I.A. No. 3 of 1990 has been made on behalf of Nav Bharat Udyog, a partnernship firm having its office at Mehta Building, 2nd Floor, 47, Nagindas Marg, Bombay, confined to the plea with regard to jurisdiction and it has been urged by learned counsel for the intervenor also, in line with the submission made by learned counsel for the respondents, that it is only the Bombay City Civil Court and not the High Court which has jurisdiction to entertain a petition under sections 31 and 32 of the Act.
For the sake of facility in considering the respective submissions made by learned counsel for the parties we find it useful to refer to the statutory provisions relevant in this behalf.
Section 2 of the Bombay City Civil Court Act, 1948 contains definitions and inter alia provides: "2.
In this Act unless there is anything repugnant in the subject or context, (1) "City Court" means the Court established under Section 3; (2) "High Court" means the High Court of Judicature at Bombay" 487 Section 3 in its turn provides: "3.
The State Government may by notification in the Official Gazette, establish for the Greater Bombay a court, to be called the Bombay city Civil Court.
Notwithstanding anything contained in any law, such court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding fifty thousand rupees in value, and arising within the Greater Bombay, except suits or proceedings which are cognizable (a) by the High Court as a Court of Admiralty or Vice Admiralty or as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial jurisdiction, or (b) by the High Court for the relief of insolvent debtors, or (c) by the High Court under any special law other than the Letters Patent; or (d) by the Small Cause Court: Provided that the State Government may, from time to time, after consultation with the High Court, by a like notification extend the jurisdiction of the City Court to any suits or proceedings which are cognizable by the High Court as a court having testamentary or intestate jurisdiction or for the relief of insolvent debtor.
" The other Section which is relevant is Section 12 which reads: "12.
Notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City Court; Provided that the High Court may, for any special reason, and at any stage remove for trial by itself any suit or proceeding from the City Court.
" As regards Sections 31 and 32 of the , since the submissions made by learned counsel for the 488 parties referred to most of the provisions contained therein these two Sections may be quoted in their entirety.
They read: "31.
(1) Where an industrial concern, in breach of any agreement makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under section 30 and the industrial concern fails to make such repayment, then, without prejudice to the provisions of section 29 of this Act and of section 69 of the any officer of the Financial Corporation, generally or specifically authorised by the Board in this behalf, may apply to the district judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs, namely: (a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance; or (aa) for enforcing the liability of any surety; or (b) for transferring the management of the industrial concern to the Financial Corporation; or (c) for an ad interim injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board, where such removal is apprehended.
(2) An application under sub section (1) shall state the nature and extent of the liability of the industrial concern to the Financial Corporation, the ground on which it is made and such other particulars as may be prescribed.
(1) When the application is for the reliefs mentioned in clauses (a) and (c) of sub section (1) of section 31, the 489 district judge shall pass an ad interim order attaching the security, or so much of the property of the industrial concern as would on being sold realise in his estimate an amount equivalent in value to the outstanding liability of the industrial concern to the Financial Corporation, together with the costs of the proceedings taken under section 31, with or without an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment.
(IA) When the application is for the relief mentioned in clause (aa) of sub section (1) of section 31, the district judge shall issue a notice calling upon the surety to show cause on a date to be specified in the notice why his liability should not be enforced.
(2) When the application is for the relief mentioned in clause (b) of sub section (1) of section 31, the district judge shall grant an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment and issue a notice calling upon the industrial concern to show cause, on a date to be specified in the notice, why the management of the industrial concern should not be transferred to the Financial Corporation.
(3) Before passing any order under sub section I) or sub section (2) or issuing a notice under sub section (IA), the district judge may, if he thinks fit, examine the officer making the application.
(4) At the same time as he passes an order under sub section (1), the district judge shall issue to the industrial concern or to the owner of the security attached a notice accompanied by copies of the order, the application and the evidence, if any, recorded by him calling upon it or him to show cause on a date to be specified in the notice why the ad interim order of attachment should not be made absolute or the injunction confirmed.
(4A) If no cause is shown on or before the date specified in the notice under sub section (IA), the district judge shall forthwith order the enforcement of the liability of the surety.
490 (5) If no cause is shown on or before the date specified in the notice under sub sections (2) and (4), the district judge shall forthwith make the ad interim order absolute and direct the sale of the attached property or transfer the management of the industrial concern to the Financial Corporation or confirm the injunction.
(6) If cause is shown, the district judge shall proceed to investigate the claim of the Financial Corporation in accordance with the provisions contained in the Code of Civil Procedure, 1908, in so far as such provisions may be applied thereto.
(7) After making an investigation under sub section (6), the district judge may (a) confirm the order of attachment and direct the sale of the attached property; (b) vary the order of attachment so as to release a portion of the property from attachment and direct the sale of the remainder of the attached property; (c) release the property from attachment; (d) confirm or dissolve the injunction; (da) direct the enforcement of the liability of the surety or reject the claim made in this behalf, or (e) transfer the management of the industrial concern to the Financial Corporation or reject the claim made in this behalf; Provided that when making an order under clause (c) or making an order rejecting the claim to enforce the liability of the surety under clause (da) or making an order rejecting the claim to transfer the management of the industrial concern to the Financial Corporation under clause (e), the district judge may make such further orders as he thinks necessary to protect the interests of the Financial Corporation and may apportion the costs of the proceedings in such manner as he thinks fit: 491 Provided further that unless the Financial Corporation intimates to the district judge that it will not appeal against any order releasing any property from attachment or rejecting the claim to enforce the liability of the surety or rejecting the claim to transfer the industrial concern to the Financial Corporation, such order shall not be given effect to, until the expiry of the period fixed under sub section (9) within which an appeal may be preferred or, if an appeal is preferred, unless the High Court otherwise directs until the appeal is disposed of.
(8) An order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decree holder.
(8A) An order under this section transferring the management of an industrial concern to the Financial Corporation shall be carried into effect, as far as may be practicable, in the manner provided in the Code of Civil Procedure, 1908, for the possession of immovable property or the delivery of immovable property in execution of a decree, as if the Financial Corporation were the decree holder.
(9) Any party aggrieved by an order under sub section (4A), sub section (5) or sub section (7) may, within thirty days from, the date of the order, appeal to the High Court, and upon such appeal the High Court may, after hearing the parties, pass such orders thereon as it thinks proper.
(10) Where proceedings for liquidation in respect of an industrial concern have commenced before an application is made under sub section (1) of section 31, nothing in this section shall be construed as giving to the Financial Corporation any preference over the other creditors of the industrial concern not conferred on it by any other law.
(11) The functions of a district judge under this section shall be exercisable 492 (a) in a presidency town, where there is a City Civil Court having jurisdiction, by a judge of that court and in the absence of such court, by the High Court; and b) elsewhere, also by an additional district judge or by any judge of the principal court of civil jurisdiction.
(12) For the removal of doubts it is hereby declared that any court competent to grant an ad interim injunction under this section shall also have the power to appoint a Receiver and to exercise all the court powers incidental thereto.
At this place it may be pointed out that with regard to the enforcement of the liability of a surety it was held by a Full Bench of the Allahabad High Court in Munnalal Gupta vs Uttar Pradesh Financial Corporation and Another, A.I.R. 1975 Allahabad 416 that from the scheme of the Act it is clear that the speedy remedy contained in Section 31 is available not against the surety but against the borrower only.
In arriving at this conclusion reference was made inter alia to the reliefs (a), (b) and (c) contained in sub section (1) of Section 31 and to sub section (4) of Section 32 of the Act as it then stood.
It was pointed out that this sub section (4) contemplated a notice to the borrower industrial concern after an interim order had been passed to show cause why the ad interim injunction should not be made absolute but did not contemplate a notice to the surety and that it would be unthinkable that the Legislature intended that the property of the surety may be attached and put to sale without even a notice to him.
It appears that in order to meet the difficulty in enforcing the liability of a surety as pointed out in the case of Munnalal Gupta (supra) Parliament found it necessary to make specific provisions in this behalf and passed the State Financial Corporations (Amendment) Act, 1985 (hereinafter referred to as Act 43 of 1985).
Among other amendments made by Act 43 of 1985 were the following: (i) In sub section (1) of Section 31 clause (aa) was inserted.
(ii) In Section 32 a new sub section (lA) and in sub section (3) thereof the words "or issuing a notice under sub section (lA)" were inserted.
493 (iii) Sub section (4) of Section 32 was substituted with an inclusion of sub section (4A).
(iv) The word "or" occurring at the end of clause (d) of sub section (7) was omitted and a new clause (da) was inserted.
(v) In the first proviso after sub section (7) the words "or making an order rejecting the claim to enforce the liability of the surety under clause (da) or making an order rejecting the claim to transfer the management of the industrial concern to the Financial Corporation under clause (e)" and in the second provis1on the words "or rejecting the claim to enforce the liability of the surety or rejecting the claim to transfer the industrial concern to the Financial Corporation" were inserted and in sub section (9) the words "under sub section (4A), sub section (5)" were substituted for "under sub section (5)" By the same Act 43 of 1985 a new Section 32G was inserted which reads: "32G.
Where any amount is due to the Financial Corporation in respect of any accommodation granted by it to any industrial concern, the Financial Corporation or any person authorised by it in writing in this behalf, may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the amount due to it, and if the State Government or such authority, as that Government may specify in this behalf, is satisfied, after following such procedure as may be prescribed, that any amount is so due, it may issue a certificate for that amount to the Collector, and the Collector shall proceed to recover that amount in the same manner as an arrear of land revenue.
" Having extracted the relevant statutory provisions we now take up the question of jurisdiction.
Sub section (1) of Section 31 of the Act contemplates making of the petition thereunder "to the district judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business".
A petition so made is to be decided in the manner provided by Section 32 of the Act, subsection (11) whereof inter alia provides that the functions of a district judge under the said Section shall be exercisable, in a Presidency town, where there is a City Civil Court having jurisdiction, by a judge 494 of the court and in the absence of such court, by the High Court.
It has been urged by learned counsel for the appellant that in a case to which the provisions contained in sub section (1) of Section 32 of the Act and of the Bombay City Civil Court apply, if the extent of the liability sought to be enforced against a surety is upto Rupees fifty thousand a petition under Section 31 read with Section 32 of the Act would lie before the Bombay City Civil Court and if the liability is more than the said amount it would lie before the High Court.
This, according to him is apparent from the use of the words "having jurisdiction" in sub section (11) of Section 32 of the Act and the extent of the pecuniary jurisdiction of the Bombay City Civil Court as contained in Section 3 of the Bombay City Civil Court Act.
According to him since in the instant case the liability sought to be enforced against the sureties was for a sum of more than Rupees fifty thousand the petition made by the appellant was maintainable in the High Court alone and not in the Bombay City Civil Court.
On the other hand, it has been urged on behalf of the respondents and the intervenor by their learned counsel that word "jurisdiction" used in sub section (1) of Section 31 and sub section (11) of Section 32 of the Act connotes territorial jurisdiction alone and that the concept of pecuniary jurisdiction is beyond the scope of Sections 31 and 32 in view of the decision of this Court in Gujarat State Financial Corporation vs Natson Manufacturing Co. Pvt. Ltd. and Ors., relied on in M/s. Everest Industrial Corporation and Ors.
vs Gujarat State Financial Corporation, [ ; and Maganlal vs M/s. Jaiswal Industries, Neemach and Ors., [ ; which lays down that an application under Section 31(1) of the Act is neither a plaint as contemplated by Article I of Schedule I nor an application in the nature of a plaint as contemplated by Article 7 of the Court Fees Act, 1870, that the special procedure contained in Section 3 1(1) was not even something akin to a suit of a mortgagee to recover mortgage money by sale of mortgaged property, that even if the Corporation applicant so chooses it cannot pray for a preliminary decree for accounts or final decree for payment of money nor can it seek any personal liability, that the Corporation cannot pray for a decree of its outstanding dues, that the reliefs contemplated by Section 31(1) on being granted do not result in a money decree or decree for recovery of outstanding loans or advance, that a substantive relief in an application under Section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree and that such relief cannot be valued in terms of the monetary gain or prevention of monetary loss.
495 Having given our anxious consideration to the question we are inclined to agree with the submission made by learned counsel for the appellant.
The three decisions of this Court referred to above and relied on by learned counsel for the respondents were not cases relating to the enforcement of a liability of a surety made possible by the amendments by Act 43 of 1985.
In our opinion, what has been laid down therein does not in any way militate against ascertaining in monetary terms value or the extent of the liability of a surety, which is sought to be enforced and there is intrinsic evidence in Sections 31 and 32 themselves to support this view.
Sub section (2) of Section 31 makes it obligatory to state the "extent of the liability (1) of Section 32 refers to "an amount equivalent in value to the outstanding liability".
Sub section (lA) of Section 32 contemplates notice to the surety to show cause "why his liability" should not be enforced.
Sub section (6) of Section 32 contemplates investigation and determination of "the claim" of the Financial Corporation which is to be recovered.
If the application under Section 3 1(1) is made before the district judge, there is no difficulty because he has unlimited pecuniary jurisdiction.
The difficulty arises, as in the instant case, when such application is to be made either before the city Civil Court or the High Court as contemplated by sub section (11) of Section 32.
In our opinion, the extent of the liability stated in the application as contemplated by sub section (2) of Section 31 of the Act would represent the value of the claim of the Corporation and if such value is upto Rupees fifty thousand the application would lie in the City Civil Court and if it is more than that amount it would lie in the High Court.
This interpretation would give meaning and relevance to the words "having jurisdiction" used in sub section (11) of Section 32.
A different interpretation would render superfluous or otiose not only the words "having jurisdiction" but also the words"and in the absence of such court, by the High Court" occurring in the said sub section (11) inasmuch as in a Presidency town, in terms of territorial jurisdiction, the jurisdiction of the City Civil Court and of the High Court is co terminus.
That it is so is clear from Section 3 of the Bombay city Civil Court Act and the definition of the term "Presidency town" contained in Section 3(44) of the according to which "Presidency town" shall mean the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Judicature at Calcutta, Madras or Bombay, as the case may be.
It is a settled rule of interpretation of statutes that if the language and words used are plain and unambiguous, full effect must be given to them as they stand and in the garb of finding out the intention of the 496 Legislature no words should be added thereto or subtracted there from.
Likewise, it is again a settled rule of interpretation that statutory provisions should be construed in a manner which subserves the purpose of the enactment and does not defeat it and that no part thereof is rendered surplus or otiose.
The aforesaid interpretation of sub section (II) of Section 32 of the Act is not only in conformity with the rule of interpretation referred to above, it also does not militate in any way with the concept of an application under Section 31(1) of the Act, not being a plaint in a suit for recovery of money.
Reliance in this behalf has been placed by learned counsel for the intervenor on a decision of the Delhi High Court in Parkash Playing Cards Manufacturing Company vs Delhi Financial Corporation, In our opinion, however, the said decision is of little assistance in resolving the plea of jurisdiction raised in the instant case, namely, whether in a Presidency town an application under Section 31(1) of the Act is to be made before a City Civil Court or High Court.
In the case of Parkash Cards Manufacturing Company (supra), the provision which came up for consideration in the forefront was Section 5 of the and the question of jurisdiction was largely considered on that basis.
Sub section (11) of Section 32 with pointed reference to the jurisdiction exercisable by a City Civil Court in a Presidency town and the High Court did not fall for consideration in that case.
The case which throws some light on the point is a decision of the Calcutta Court Court in West Bengal Financial Corporation vs Gluco Series Private Limited, where it was held: "Section 32 sub section (1 1) does not say that the City Civil Court will have exclusive jurisdiction but states "in the Presidency Town where there is City Civil Court having jurisdiction, by a Judge of that Court and in the absence of such Court by the High Court.
" The words "in the absence of such Court" mean in the absence of such Court having jurisdiction in the matter.
The City Civil Court has no jurisdiction to entertain and try suits and proceedings of Civil nature exceeding Rs.50,000 in value.
Here the value of the claims in the proceedings exceeds much more than Rs.50,000 and, therefore, under Section 32, sub section (11) this proceeding has been duly instituted in the High Court.
497 In the instant case the extent of the liability of the surety being more than Rupees fifty thousand, the application could only have been filed and was rightly filed in the High Court and the finding in the judgment under appeal to the contrary for holding that the High Court had no jurisdiction to entertain the application cannot be sustained.
Now we come to the second plea raised on behalf of the respondents, namely, that the relief claimed in the petition could not be granted under Sections 31 and 32 of the Act inasmuch as these sections did not contemplate passing of a money decree not only against the principal debtor but also against the sureties.
In so far as the special machinery provided under Sections 31 and 32 of the Act being applied to a surety who has given some property in security, it has been pointed out by learned counsel for the appellant that even before the amendment introduced in these sections by Act 43 of 1985 a Division Bench of the Kerala High Court had, in Thressiamma Varghese vs K. section F. Corporation, AIR 1986 Kerala 222, taken the view that the provisions contained in these sections would be applicable.
According to teamed counsel, in any view of the matter, after the amendment of these sections by Act 43 of 1985 introducing specific provisions for enforcement of the liability of a surety, the matter is now beyond doubt that the procedure contained in these sections shall be applicable for the enforcement of the liability of such surety who has given some property in security.
According to him even in the judgment under appeal the High Court has accepted this proposition and has expressed its reservation with regard to enforcement of the liability of a surety who has not given any property in security and has given only a personal guarantee.
Reference in this connection has been made to the following observations in the judgment under appeal: "Even if the Corporation s now entitled to obtain relief also against any property which might have been given a security by the surety, the further question would remain whether the Corporation is entitled under Section 31(l)(aa) to obtain any relief personally against such a surety.
" Indeed, the submission even before us which was made by learned counsel for the appellant has been that the only effect of the 1985 amendment is that it enables proceedings to be taken for the realisation of the security given by the surety in respect of his own 498 liability whereas such proceedings could not be taken before the amendment.
He, however, asserted that the Act even after the amendment does not enable a monetary decree to be passed against the surety any more than a decree can be passed against the principal debtor.
According to him, in this view of the matter, in the instant case, the liability of the sureties could not be enforced under Sections 31 and 32 of the Act in as much as they had given only personal guarantee and had not given any property in security.
In the background of the rules of interpretation of statutes adverted to earlier and the specific provisions with regard to enforcement of the liability of a surety introduced in Sections 31 and 32 of the Act by Act 43 of 1985 we find it difficult to agree with the submission made by learned counsel for the respondents.
It is true, as has been indicated above, that this Court has in the case of Gujarat State Financial Corporation (supra) taken the view that Sections 31 and 32 of the Act do not contemplate the passing of a money decree and the principle laid down in that case has been relied on in two later decisions referred to above.
The said principle would, in our opinion, not come in the way of enforcing the liability under Sections 31 and 32 of the Act even against the surety who has given only a personal guarantee.
As indicated earlier those were not cases dealing with the question of enforcement of the liability of such a surety and naturally, therefore, the provisions in this behalf specifically introduced in Sections 31 and 32 of the Act by Act 43 of 1985 were not considered in those cases.
However, in this connection what is of significance is that clause (aa) inserted in sub section (1) of Section 31 of the Act by Act 43 of 1985 uses the words "any surety".
On its plain grammatical meaning there can be no doubt that the term "any surety" will include not only a surety who has given some security but also one who has given only a personal guarantee.
If the submission made by learned counsel for the respondents is accepted the words "who has given property by way of security" will have to be added after the words "any surety".
Such a course not only militates against the normal rule of interpretation but also tends to defeat the very purpose of the amendment introduced by Act 43 of 1985 enabling the Financial Corporation to make an application under Section 31(1) of the Act "for enforcing the liability of any surety", inasmuch as it would have the effect of restricting or qualifying the amplitude of the term "any surety" which the Legislature has in its wisdom thought it fit to use in its widest sense.
The procedure, in our opinion, for enforcing the liability of a surety who has given only a personal guarantee would, after the amendment introduced by Act 43 of 1985, be that an application under Section 31(1) shall lie for enforc 499 ing the liability of such surety as contemplated by clause (aa) of the said section.
On such an application being made notice shall be issued to the surety as contemplated by sub section (1A) of Section 32.
This may, in view of sub section (3), be done after examining the officer making the application.
If no cause is shown in pursuance of the notice served on him by the surety sub section (4A) of Section 32 contemplates passing of an order forthwith for the enforcement of the liability of surety.
If, on the other hand, cause is shown the claim of the Financial Corporation shall be determined as contemplated by sub section (6) of Section 32 and thereafter a direction as contemplated by clause (da) of sub section (7) shall be issued for the enforcement of the liability of the surety or rejecting the claim made in this behalf.
In the case of Maganlal (supra) which related to the relief contemplated by clause (a) of Section 31(1) of the Act it was pointed out that the purpose of enacting Sections 31 and 32 of the Act was apparently to provide for a speedy remedy for recovery of the dues of the Financial Corporation and that these sections had the effect of cutting across and dispensing with the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) from the stage of filing a suit to the stage of obtaining a decree in execution whereof such properties as are referred to in clause (a) of sub section (1) of Section 31 could be sold.
In our opinion, on the same principle, even in a case where the relief claimed in the application under Section 31(1) of the Act is for enforcing the liability of a surety who has given only a personal guarantee, sub section (4A) of Section 32 where no cause is shown and clause (da) of sub section (7) where cause is shown contemplate cutting across and dispensing with the provisions of the Code from the stage of filing a suit to the stage of obtaining a decree against the surety, the passing of an order which can straightaway be executed as if it were a decree against the surety which may be passed in the event of a suit being filed.
As seen above, sub section (2) of Section 31 enjoins upon the Financial Corporation to state the "extent of the liability of the industrial concern" in the application to be made under sub section (1) thereof.
Since the liability of the surety is co extensive the same shall, in the absence of anything contrary in the surety bond, be the liability of the surety also.
In a case where there is any provision confining the liability of the surety, the extent of the liability to be shown in the application shall be such as is in conformity with the surety bond.
When no cause is shown by the surety on being served with the show cause notice the order which will be passed under sub section (4A) of Section 32 would be for the enforcement against the surety of that liability which is stated in the application.
Where, however, cause has been shown by the surety the extent of his liability shall be determined 500 as contemplated in sub section (6) of Section 32 and it is the liability so determined which shall be enforced under clause (da) of sub section (7) of Section 32.
It does not require any elucidation that the extent of the liability referred to above will necessarily have to be in the very nature of things in terms of monetary value even though it may not be possible to call it a decree stricto sensu defined in Section 2(2) of the Code for recovery of money.
Here, Section 46B of the Act may be usefully extracted: "46B.
The provision of this Act and of any rule or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being applicable to an industrial concern.
On its plain language, in the absence of anything inconsistent in the Act, the provisions of the Code shall obviously be applicable for the enforcement of the liability of the surety directed to be enforced as aforesaid in the same manner as a decree is enforced in a suit instituted in this behalf.
It is true, as has been emphasised by learned counsel for the respondents, that there is no provision corresponding to sub section (8) of Section 32 for the enforcement of the liability of a surety who has given only personal guarantee but, in our opinion, keeping in view the amendments introduced by Act 43 of 1985, it is not very significant.
To us it appears that in view of Section 46B of the Act and for the reasons to be stated shortly even if Section 46B was not there, in the absence of any provision to the contrary in the Act, that order also, which was passed in a case where relief contemplated by clause (a) of Section 31(1) of the Act was claimed, could have been enforced in the manner provided in the Code.
The purpose of yet inserting sub section (8) in Section 32 seems to be that it was not intended to apply the provisions of execution of a decree for attachment or sale of property as contained in the Code in its entirety and to achieve this purpose the words "as far as practicable" were used in that sub section.
To us it appears that in the absence of any provision such as sub section (8) of Section 32 applying the manner provided in the Code for the execution of a decree against a surety only "as far as practicable" the entire provision contained in this behalf in the Code 501 shall be applicable.
this would be so in view of the use of the expression "any other law for the time being applicable to an industrial concern".
That the Code is applicable to an industrial concern also is not in dispute and cannot be doubted.
We may now state our reasons for holding that even if Section 46B of the Act was not there the provisions of the Code for the execution of a decree against a surety who had given only personal guarantee would, in the absence of any provision to the contrary in the Act, be applicable.
In view of the decision of this Court in The Central Taikies Ltd. Kanpur vs Dwarka Prasad, ; , where it was held that a persona designata is a person selected as an individual in his private capacity, and not in his capacity as filling a particular character or office, since the term used in Section 31(1) of the Act is "district judge" it cannot be doubted that the district judge is not a persona designata but a court of ordinary civil jurisdiction while exercising jurisdiction under Sections 31 and 32 of the Act.
In National Sewing Thread Co. Ltd. vs James Chadwick & Bros. Ltd., ; while repelling the objection that an appeal under the Letters Patent against the judgment of a Single Judge passed in an appeal against the decision of the Registrar under Section 76(1) of the was not maintainable it was held at pages 1033 34 of the Report: "Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction.
The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court.
This rule was very succinctly stated by Viscount Haldane L.C. in National Telephone Co. Ltd. vs Postmaster General, in these terms: "When a question is stated to referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.
" 502 The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar vs Ra.
Chandrasekhara Thevar, wherein it was said: "Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal." Again in Secretary of State for India vs Chellikani Rama Rao, when dealing with the case under the Madras Forest Act their Lordships observed as follows: "It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted.
In their Lordships ' opinion this objection is not well founded.
Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply." Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case.
Section 76 of the confers a right of appeal to the High Court and says nothing more about it.
That being so, the High Court being seized as such of the appellate jurisdiction conferred by section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the .
And it is in view of this decision that we are of the opinion that the provisions of the Code would have, even in the absence of Section 503 46B of the Act, been attracted in the matter of enforcing the liability of a surety.
In view of the foregoing discussion, the finding of the High Court even on this point cannot be sustained.
Since, however, the High Court has not made a determination of the liability of the sureties as contemplated by sub section (6) of Section 32 of the Act, the matter has to be sent back to it for doing so and thereafter to pass an order as contemplated by clause (da) of sub section (7) of Section 32 of the Act and to proceed to enforce the liability so determined an against the sureties.
In the result, this appeal succeeds and is allowed with costs and the judgment of the Division Bench and also of the Single Judge of the High Court are set aside.
The High Court shall now decide the application made by the appellant in accordance with law and in the light of the observations made above.
S.C. AGRAWAL, J. Special leave granted.
In this appeal two questions arise for consideration: 1) whether a petition under sections 31 and 32 of the (hereinafter referred to as 'the Act ') can be filed only in the Bombay Civil City Court and the Bombay High Court, on its original side, has no jurisdiction to entertain it? and 2) whether in such a petition, a decree/order can be passed directing payment of money by respondents nos.
2 to 4 who stood surety for repayment of the loan advanced by the appellant, Financial Corporation to respondent No. 1? The Division Bench of the Bombay High Court has answered both these questions against the appellant.
My learned brother Ojha, J. has disagreed with this view of the Bombay High Court on both the questions.
He has held that as the extent of the liability of the surety is more than Rupees fifty thousand the application could only have been filed and was rightly filed in the High Court which had the jurisdiction to entertain it.
He has also held that in view of the amendments introduced in the Act by the Amending Act 43 of 1985, an order for payment of money can be passed against the surety who has given only a personal guarantee.
While I am fully in agreement with the decision of my learned brother on the first question with regard to the jurisdiction of the Bombay High Court to entertain the petition filed by the appellant, I have not been able to persuade myself to agree with the view taken by him on the second question.
Section 31 of the Act has been described in the marginal note as special provisions for enforcement of claims by the Financial Corpora 504 tion.
It deals with a situation where an industrial concern, in breach of any agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation or where the Financial Corporation requires an industrial concern to make immediate repayment of any loan or advance under section 30 of the Act and the industrial concern fails to make such repayment.
It enables an officer of the Financial Corporation, generally or specially authorised by the Board in this behalf, to apply to the District Judge within the limits of whose jurisdiction the Industrial concern carries on the whole or a substantial part of its business for one or more of the following reliefs: (a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance; or (aa) for enforcing the liability of any surety; or (b) for transferring the management of the industrial concern to the Financial Corporation; or (c) for an ad interim injunction restraining the industrial concern from transferring or removing its machinery or plant or equipment from the premises of the industrial concern without the permission of the Board, where such removal is apprehended.
Clause (aa) was inserted in sub section (1) of section 31 by section 19 of Act 43 of 1985.
Section 32 of the Act prescribes the procedure to be followed by the District Judge in respect of applications under section 31 of the Act.
Prior to the amendments introduced in it by Act 43 of 1985, the said section read as under: "32.
Procedure of district judge in respect of applications under Section 31.
(1) When the application is for the reliefs mentioned in clauses (a) and (c) of sub section (1) of section 31, the district judge shall pass an ad interim order attaching the security, or so much of the property of the industrial concern as would on being sold realise in his estimate an amount equivalent in value to the outstanding 505 liability of the industrial concern to the Financial Corporation, together with the costs of the poceedings taken under section 31, with or without an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment.
(2) When the application is for the relief mentioned in clause (b) of sub section (1) of section 31, the district judge shall grant an ad interim injunction restraining the industrial concern from transferring or removing its machinery, plant or equipment and issue a notice calling upon the industrial concern to show cause, on a date to be specified in the notice, why the management of the industrial concern should not be transferred to the Financial Corporation.
(3) Before passing any order under sub section (1) or sub section (2) the district judge may, if he thinks fit, examine the officer making the application.
(4) At the same time as he passes an order under sub section (1), the district judge shall issue to the industrial concern a notice accompanied by copies of the order, the application and the evidence, if any, recorded by him calling upon it to show cause on a date to be specified in the notice why the ad interim order of attachment should not be made absolute or the injunction confirmed.
(5) If no cause is shown on or before the date specified in the notice under sub sections (2) and (4), the district judge shall forthwith make the ad interim order absolute and direct the sale of the attached property or transfer the management of the industrial concern to the Financial Corporation or confirm the injunction.
(6) If cause is shown, the district judge shall proceed to investigate the claim of the Financial Corporation in accordance with the provisions contained in the Code of Civil procedure, 1908, in so far as such provisions may be applied thereto.
(7) After making an investigation under sub section (6), the district judge may 506 (a) confirm the order of attachment and direct the sale of the attached property: (b) Vary the order of attachment so as to release a portion of the property from attachment and direct the sale of the remainder of the attached property; (c) release the property from attachment; (d) confirm or dissolve the injunction; or (e) transfer the management of the industrial concern to the Financial Corporation or reject the claim made in this behalf: Provided that when making an order under clause (c) the district judge may make such further orders as he thinks necessary to protect the interests of the Financial Corporation and may apportion the costs of the proceedings in such manner as he thinks fit: Provided further that unless the Financial Corporation intimates to the district judge that it will not appeal against any order releasing any property from attachment, such order shall not be given effect to, untill the expiry of the period fixed under sub section (9) within which an appeal may be preferred or, if an appeal is preferred, unless the High Court otherwise directs until the appeal is disposed of.
(8) An order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree, as if the Financial Corporation were the decree holder.
(8A) An order under this section transferring the management of an industrial concern to the Financial Corporation shall be carried into effect, as far as may be practicable, in the manner provided in the Code of Civil Procedure, 1908, for the possession of immovable property of the delivery of movable property in execution of a decree, as if the Financial Corporation were the decree holder.
507 (9) Any party aggrieved by an order under sub section (5) or sub section (7) may, within thirty days from the date of the order, appeal to the High Court, and upon such appeal the High Court may, after hearing the parties, pass such orders thereon as it thinks proper.
(10) Where proceedings for liquidation in respect of an industrial concern have commenced before an application is made under sub section (1) of section 31, nothing in this section shall be construed as giving to the Financial Corporation any preference over the other creditors of the industrial concern not conferred on it by any other law.
(11) The functions of a district judge under this section shall be exercisable (a) in a presidency town, where there is a city civil court having jurisdiction, by a judge of that court and in the absence of such court, by the High Court; and (b) elsewhere, also by an additional district judge or by any judge of the principal court of civil jurisdiction.
(12) For the removal of doubts it is hereby declared that any court competent to grant an ad interim injunction under this section shall also have the power to appoint a Receiver and to exercise all the other powers incidental thereto.
" By Act 43 of 1985, the following amendments have been introduced in section 32 of the Act: (1) Sub section (1A) which reads as under was inserted: "(1A) When the application is for the relief mentioned in clause (aa) of sub section (1) of section 31, the district judge shall issue a notice calling upon the surety to show cause on a date to be specified in the notice why his liability should not be enforced." (2) In sub section (3), the words, or issuing a notice under sub section (1A) "were inserted after the words" "or sub section (2)".
508 (3) Subsection (4) was substituted by sub sections (4) and (4A), which read as under: "(4) At the same time as he passes an order under subsection (1), the district judge shall issue to the industrial concern or to the owner of the security attached a notice accompanied by copies of the order, the application and the evidence, if any, recorded by him calling upon it or him to show cause on a date to be specified in the notice why the ad interim order of attachment should not be made absolute or the injunction confirmed.
(4A) If no cause is shown on or before the date specified in the notice under sub section (1A), the district judge shall forthwith order the enforcement of the liability of the surety.
(4) In sub section (7), clause (da) was inserted which provides as under: "(da) direct the enforcement of the liability of the surety or reject the claim made in this behalf; or" (5) In the first proviso to sub section (7), the words "or making an order rejecting the claim to enforce the liability of the surety under clause (da) or making an order rejecting the claim to transfer the management of the industrial concern to the Financial Corporation under clause (e)" were inserted after the words "order under clause (c)".
(6) In the second proviso to sub section (7), the following words were inserted after words "any property from attachment": or rejecting the claim to enforce the liability of the surety or rejecting the claim to transfer the industrial concern to the Financial Corporation." (7) In sub section (9), for the words "sub section (5)", the words "under sub section (4A), sub section (5)" were substituted.
In order to find an answer to the second question, it is necessary to construe the words "for enforcing the liability of any surety" which were introduced by way of clause (aa) in sub section (1) of section 31 509 by the Act 43 of 1985, and also find mention in sub sections (IA), (4A) and (7) of section 32.
The learned counsel for the appellant has urged that the said words are wide in their amplitude and would cover a case where the surety has given a personal guarantee only and his liability is purely monetary.
The learned counsel for the sureties, viz., respondents Nos. 2, 3 and 4, has, on the other hand, submitted that the said words must be construed in a more limited sense to cover only those cases where surety has given security of property to guarantee the repayment of loan and in such an event the remedy provided by sections 31 and 32 of the Act can be invoked against the surety and that the said provisions do not enable passing of an order for payment of a monetary sum against the surety who has given personal guarantee only.
In order to deal with these rival contentions, it would be of relevance to take note of the state of law existing on the date of the enactment of Act 43 of 1985 whereby amendments were introduced in sections 31 and 32 of the Act.
The provisions contained in sections 31 and 32 of the Act came up for consideration before this Court in Gujarat State Financial Corporation vs M/s Natson Manufacturing Co. (P) Ltd. & Ors., ; That case related to payment of court fee on an application submitted under section 31(1) of the Act and the question for consideration was whether such an application should be treated on par with a suit by a mortgagee to enforce the mortgage debt by sale of the mortgaged property which is being treated as a money suit failing within the purview of Article 1 of Schedule I to the Bombay Court Fees Act, 1959 or it should bear a fixed court fee under the residuary Article 1(c) to Schedule II of the said Act.
This Court disagreeing withthe view of the Gujarat High Court, held that an application under section 31(1) of the Act would be covered by the residuary Article 1(c) of Schedule II to the said Act and it should bear a fixed court fee.
In this context, this Court has examined the nature of the proceedings contemplated by section 31(1) of the Act.
After referring to the provisions of the Act, this Court has held that "it would be inappropriate to say that an application under section 31(1) is something akin to a suit by a mortgagee to recover mortgage money by sale of mortgaged property" and that "in an application under section 31(1), the Corporation does not and cannot pray for a decree for its outstanding dues" and that none of the three reliefs mentioned in sub section (1) of section 31, if granted, "results in a money decree or decree for recovery of outstanding loans or advance" (pages 378 379).
After referring to the provisions contained in sub section (6) of section 32, which provides for investigation of the claim of the Financial Corporation in 510 accordance with the provisions contained in the code of Civil Procedure, 1908, this Court has laid down: "The claim of the Corporation is not the monetary claim to be investigated though it may become necessary to specify the figure for the purpose of determining how much of the security should be sold.
But the investigation of the claim does not involve all the contentions that can be raised in a suit.
The claim of the Corporation is that there is a breach of agreement or default in making repayment of loan or advance or instalment thereof and, therefore, the mortgaged property should be sold.
It is not a money claim.
The contest can be that the jurisdictional fact which enables the Corporation to seek the relief of sale of property is not available to it or no case is made out for transfer of management of the industrial concern.
" (p.381) This Court has further emphasised that sub section (7) of section 32 "prescribes what reliefs can be given after investigation under subsection (6) is made, and it clearly gives a clue to the nature of contest under sub section (6)" and further that sub section (8) of section 32 . 'only prescribes the mode and method of executing the order of attachment or sale of property as provided in the Code of Civil Procedure".
According to this Court, "the provision contained in sub section (6) does not expand the contest in the application under section 31(1) as to render the application to be a suit between a mortgagee and the mortgagor for sale of mortgaged property" (p.381).
This Court has held that "the substantive relief in an application under section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree" (p.382).
In Everest Industrial Corporation & Ors.
vs Gujarat State Financial Corporation, this Court was examining the question whether the rate of interest on the amount payable under an order passed under section 32 of the Act from the date said order is governed by section 34 of the Code of Civil Procedure, 1908 or whether it is payable at the contractual rate.
This Court held that section 34 CPC was not applicable to these proceedings.
After referring to the earlier decision in Gujarat State Financial Corporation vs M/s Natson Manufacturing Co. (P) Ltd. & Ors. case (supra), this Court has reiterated that the proceedings instituted under section 31(1) of the Act is something akin to an application for attachment of property in execution of a decree at a stage posterior 511 to the passing of the decree and, therefore, no question of passing any order under section 34 CPC would arise since section 34 CPC would be applicable only at the stage of the passing of the decree and not to a stage posterior to the passing of the decree.
In Maganlal etc.
vs Jaiswal Industries Neemach & Ors., , after referring to the decisions mentioned above, this Court has observed: "In view of these two decisions, the law seems to be settled that an application under section 31(1) of the Act cannot be put on par to a suit for enforcement of a mortgage nor the order passed thereon under section 32 of the Act be put on par as if it was an order in a suit between a mortgagee and the mortgagor for sale of mortgaged property.
On the other hand the substantive relief in an application section 31(1) is something akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree." (p.710) The question whether the provisions of sections 31 and 32 of the Act could be invoked against the property of the surety came up for consideration before a full bench of the Allahabad High Court in Munnalal Gupta vs Uttar Pradesh Financial Corporation & Anr., AIR 1975 ALL 416.
In that case, the surety had mortgaged his house by way of collateral security for the loan granted to the borrower industrial concern and the Financial Corporation had moved an application under section 31 of the Act for sale of the property of the surety which had been mortgaged as well as the property of the principal debtor which had been mortgaged and the question was whether an order for sale of the property of the surety could be passed on an application under section 31( 1) of the Act.
It was held that the relief which can be granted by a District Judge under section 32 of the Act must be confined against the borrower industrial concern and its property and that the District Judge can pass an ad interim order attaching the security or so much of the property of the industrial concern as would be sufficient in his opinion to satisfy the outstanding liability.
It was laid down that the order of attachment is restricted to the property of industrial concern given to the Corporation by way of surety and he is not empowered to attach the property of a person other than an industrial concern.
According to the said decision, a surety, who is not a partner or otherwise interested in the industrial concern, cannot be proceeded against under section 31 so that his property, even if mortgaged with the Corporation, cannot be attached 512 by the District Judge.
In this context, the teamed Judges pointed out the sub section (4) of section 32 contemplates a notice to the borrower industrial concern after an interim order has been passed to show cause why the ad interim injunction should not be made absolute and the said provision does not contemplate a notice to the surety and that it would be unthinkable that the legislature intended that the property of the surety may be attached and put to sale without even a notice to him.
The amendments introduced in sections 31 and 32 by Act 43 of 1985 seek to remove the lacunae in those provisions as pointed out in the aforesaid judgment of the Allahabad High Court and with that end in view clause (aa) has been inserted in sub section (1) of section 31 whereby a Financial Corporation can move an application under section 31(1) for enforcing the liability of any surety and amendments have been made in section 32 to prescribe the procedure for grant of the said relief on such application.
Express provision has been made in sub section (1A) of section 32 for issuing a notice to the surety requiring him to show cause why his liability should not be enforced.
It is argued on behalf of the appellant that the words "for enforcing the liability of any surety" are wide in their amplitude to cover the monetary liability of a surety who has given personal guarantee only and has not given his property as security for repayment of the loan by the borrower industrial concern, though it is not disputed that in so far as the borrower industrial concern is concerned, the amendments introduced in sections 31 and 32 by Act 43 of 1985 do not alter the existing law and no order in the nature of a money decree can be passed against him in these proceedings.
It is, however, urged that in so far as the surety is concerned the position is different and in view of the amendments introduced in sections 31 and 32, an order in the nature of a money decree can be passed against the surety who has given personal guarantee only and has not given security of his property for repayment of the loan.
This argument implies that as a result of the amendments introduced in sections 31 and 32 by Act 43 of 1985 while the nature of the proceedings as against the borrower industrial concern remains unchanged and the said proceedings continue to be proceedings akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree, the nature of these poceedings has been changed in so far as the surety is concerned and they have become proceedings in which an order in the nature of a money decree can be passed.
In other words, in a case where the borrower industrial concern has obtained a loan from the Financial Corporation without furnishing the security of property on the basis of 513 a personal guarantee given by the surety, the Financial Corporation will have to proceed against the borrower industrial concern by instituting a regular suit for recovery of the dues whereas it can proceed against the surety under sections 31 and 32 of the Act.
It means that as compared to the principal debtor the Financial Corporation vis a vis the surety has been placed on a more advantageous Position.
It may, however, be mentioned that under the common law, which finds re enactment in section 128 of the , the liability of the surety is coextensive with that of the principal debtor unless it is otherwise provided by the contract.
It means that the liability must be proved against the surety in the same way as against the principal debtor.
Thus under the general law the surety stands on the same footing as the principal debtor.
These submissions raise the question: can the legislature be attributed the intention to alter the existing law so as to bring about a change in the nature of proceedings under sections 31 and 32 of the Act and also to alter the general law relating to the enforcement of the liability of the surety? I find it difficult to answer this question in the affirmative.
In the matter of interpretation of statutes, a principle which is well recognised in England is: "it is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended." (See: Mexwell on The Interpretation of Statutes, 12th Edition, p. 116).
In Minet vs Leman, [1955] (20) Eeav.
Sir John Romilly, M.R. stated as a principle of construction, which could not be disputed, that "the general words of the Act are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched".
In this context, it would be of relevance to take note of the decision of this court in M.K.Ranganathan & Anr.
vs Government of Madras & Ors.
, ; In that case this Court was required to construe the words "or any sale held without leave of the Court of any of the properties of the Company" which were added in section 232 (1) of the Indian Companies Act, 1913 by Act 22 of 1936.
the said amendment was introduced with a view to get over the decision of the Allahabad High Court in Kayastha Training and Banking Corporation Ltd vs Sat Narain Singh, All. 433.
The question was whether the words which had been added refer only to sales held through the intervention of the 514 court or whether they included the sales effected by the secured creditors outside the winding up and without the intervention of the court.
This Court held that the said words referred only to sales held through the intervention of the Court and that the amendments whereby these words were introduced were not intended to bring within the sweep of the general words "sales effected by the secured creditors outside the winding up".
In order to arrive at this conclusion, this Court placed reliance on the principle of interpretation referred to above and it was observed: "If the construction sought to be put upon the words "or any sale held without leave of the Court of any of the properties" by the Appellants were accepted it would effect a fundamental alteration in the law as it stood before the amendment was inserted in section 232 by Act XXII of 1936.
Whereas before the amendment the secured creditor stood outside the winding up and could if the mortgage deed so provided, realise his security without the intervention of the Court by effecting a sale either by private treaty or by public auction, no such sale could be effected by him after the amendment and that was certainly a fundamental alteration in the law which could not be effected unless one found words used which pointed unmistakably to that conclusion or unless such intention was expressed with irresistible clearness.
Having regard to the circumstances under which the amendment was inserted in section 232 by Act XXII of 1936 and also having regard to the context we are not prepared to hold that the Legislature in inserting that amendment intended to effect a fundamental alteration in law with irresistible clearness.
Such a great and sudden change of policy could not be attributed to the Legislature and it would be legitimate therefore to adopt the narrower interpretation of those words of the amendment rather than an interpretation which would have the contrary effect." (p. 388) In my opinion, regard must be had of this principle of interpretation while construing the expression "for enforcing the liability of any surety" which has been inserted by way of clause (aa) in sub section (1) of section 31 by Act 43 of 1985.
Considering the amendments introduced in sections 31 and 32 of the Act by Act 43 of 1985 and having regard to the principle of interpretation referred to above I do not find any provision in the said amendments which may indicate that 515 Parliament has evinced an intention to effect a fundamental alteration in the law with irresistible clearness.
In this context, it would be of relevance to note that while introducing the said amendments Parliament has chosen not to make any alteration in relation to the following matters: (1) In the marginal note, section 31 is described as `special provisions for enforcement of claims by Financial Corporation '.
No alteration has been made therein by Act 43 of 1985 and section 31 continues to be a special provision for enforcement of claims by Financial Corporation.
(2) Parliament has not expressly indicated that an order for payment of money only may be passed against the surety.
(3) Although in sub sections (8) and (8A) of section 32, express provision has been made prescribing the procedure for carrying into effect an order of attachment and sale of property and an order transferring the management of an industrial concern to the Financial Corporation passed under sub section (7) of section 32, no specific provision was made prescribing the procedure for carrying into effect of an order passed under clause (da) of sub section (7) of section 32 directing the enforcement of the liability of the surety.
It cannot be comprehended that while making a provision which would enable passing of an order in the nature of a money decree against a surety on an application under section 31 of the Act, Parliament would have refrained from making a corresponding provision prescribing the procedure for carrying into effect of such an order.
Having regard to the features referred to above, it appears to be more in consonance with the scheme of the Act and the object underlying sections 31 and 32 that by introducing the amendments in sections 31 and 32 of the Act, Parliament intended to place the surety on the same footing as the principal debtor in the matter of enforcement of the claims of the Financial Corporation so as to enable the Financial Corporation to obtain relief against the properties of the principal debtor as well as the surety.
If considered in this perspective, the expression "enforcing the liability of any surety" in clause (aa) of section 31(1) would mean enforcing the liability of a surety in the same manner as the liability of principal debtor is enforced, i.e., by attachment and sale of property keeping in view that the proceedings under sections 31 and 32 of the Act are akin to an application for attachment of property in execution of a decree at a stage posterior to the passing 516 of the decree.
This construction would obviate the need for a procedure for carrying into effect of the order passed under clause (da) of sub section (7) of section 32 of the Act because such an order would be an order for attachment and sale of the property of the surety and it can be carried into effect in accordance with sub section (8) of section 32 which prescribes the procedure for carrying into effect an order for attachment and sale of property.
This construction will also preserve the special nature of the proceedings under section 31 and would not result in bringing about a fundamental alteration in the law laid down by this Court with regard to the nature of these proceedings as well as the general law whereunder a surety is to be treated on par with the principal debtor.
For the reasons aforesaid, I am in agreement with the view of the Division Bench of the High Court on this question and I am unable to concur with the decision of my learned brother Ojha, J. I would, therefore, uphold the decision of the Division Bench of the High Court that the petition whereby the appellant had sought the relief of a money decree for payment of Rs. 15,87,391.20 paise against respondents 2 to 4 was not maintainable and the said relief could not be granted to the appellant in proceedings under section 31 of the Act.
As a result, the petition filed by the appellant must be dismissed and for the same reason this appeal also must fail.
R. N. J. Appeal allowed.
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Respondent No. 1 a Private Limited Company, was sanctioned a loan of Rs.30 lakh by the Appellant Corporation for the setting up of a factory.
To secure this loan a mortgage deed of certain properties was executed by the Company and Respondents 2 to 4 as its directors had executed a personal Surety Bond without any security for its repayment.
After obtaining a part of the sanctioned loan, which was to be given in phases, the Company became disinterested in availing of the balance amount.
Consequently the Corporation demanded back the amount ahead taken together with interest and on the company 's failure to do so, it took over the Industrial Concern under section 29 of the Act and initiated steps to realise its dues by putting the property to sale.
Having failed to recover the amount as no adequate offer was forthcoming despite repeated advertisements, it filed a petition before the Bombay High Court under sections 31 and 32 of the Act both against the Company as well as its directors sureties praying for a decree in the sum of Rs. 15,87,391.20 to be passed against them jointly and severally.
The respondents contested the petition contending (a) that a petition under sections 31 and 32 of the Act could be filed only before the City Civil Court and the High Court had no jurisdiction to entertain it, (b) that no money decree can be passed under sections 31 and 32 of the Act, and (c) that the provision in the Act relating to enforcement of the 481 liablity of surety were ultra vires of Article 149 of the Constitution.
The learned single judge relying on an earlier decision of the Bombay High Court reported in 1987 Mah.
L.J 243 held that the High Court had to entertain the petition but on merits took the view that no money decree could be passed under sections 31 and 32 even against the sureties and since in the instant case the sureties had not given any security except their personal guarantee, the same could be enforced only in the ordinary course and not under the special machinery provided under the Act.
In view of his findings on the first two pleas no arguments were entertained on the last plea and accordingly the petition was dismissed.
The Division Bench while dismissing the appeal not only upheld the finding of the single Judge on merits but also overruled the decision reported in and held that the High Court had no jurisdiction to entertain a petition under sections 31 and 32 of the Act.
The Corporation came up in appeal before this court by special leave against this decision of the High Court of Bombay.
The impugned judgement was assailed by the Appellant Corporation both on merites and on the plea of juridiction.
The respondents in reply asserted that the findings of the High Court on both pleas were unassailable.
Allowing the appeal, by a majority decision, HELD: A.
By the Full Court (i)The extent of the liability stated in the application as contemplated by sub section (2) of section 31 of the Act would represent the value of the claim of the Corporation and if since value is upto Rupees Fifty Thousand, the application would lie in the City City Court and if it is more than that amount it would lie in the High Court.
This interpretation would give meaning and relevance to the words "having jurisdiction" used in sub section (11) of section 32.
A different interpretation would render superfluous or otiose not only the words "having jurisdiction" but also the words and in the absence such court, by the High Court, occurring in the said sub section (11) inasmuch as in a Presidency town, in terms of territorial jurisdiction, the jurisdiction of the City Civil Court and of the High Court is co terminus [495D F] (ii) In the instant case the extent of liability of the surety being more than Rupees fifty thousand, the application could only have been filed and was rightly filed in the High Court and the finding in the 482 judgment under appeal to the contrary for holding that the High Court had no jurisdiction to entertain the application cannot be sustained.
[497A] B. Per N.
D. Ojha, J. for himself and Ranganathan, J. (iii) There can be no doubt that the term, "any surety" used in clause (aa) in sub section (1) of section 31 of the Act, will include not only a surety who has given some security but also one who has given only a personal guarantee.
In our opinion, in a case where the relief claimed in the application under section 31(1) of the Act is for enforcing the liability of a surety who has given only a personal guarantee, sub section 4(A) of section 32 where no cause is shown and clause (da) of sub section (7) where cause is shown, contemplate cutting across and dispensing with the provisions of the Code of Civil Procedure from the stage of filing a suit to the stage of obtaining a decree against the surety, the passing of an order which can straightaway be executed as if it were a decree against the surety which may be passed in the event of suit being filed.
[498F, 499E] (iv) In the absence of any provision such as sub section (8) of section 32 of the Act applying the manner provided in the Code for the execution of a decree against a surety only "as far as practicable" the entire provision contained in this behalf in the Code shall be applicable.
This would be so in view of the use of the expression "any other law for the time being applicable to an industrial concern" used in section 46B of the Act.
That the Code is applicable to an industrial concern also is not in dispute and cannot be doubted.
[50OH 501A] (v) Even in the absence of section 46B of the Act the provisions of the Code would have been attracted in the matter of enforcing the liability of a surety in view of the decision of this Court in National Sewing Thread Co. Ltd. vs James Chadwick & Bros. Ltd., ; inasmuch as the District Judge while exercising jurisdiction under sections 31 and 32 of the Act is not a persona designate but a court of ordinary civil jurisdiction.
[501B D] (Per section C. Agrawal, J. Dissenting.) It cannot be comprehended that while making provision which would enable passing of an order in the nature of a money decree against a surety on an application under section 31 of the Act, Parliament would have refrained from making a corresponding provision prescribing the procedure for carrying into effect such an order.
It 483 appears to be more in consonance with the scheme of the Act and the object underlying sections 31 and 32 that by introducing the amendments in sections 31 and 32 of the Act the Parliament intended to place the surety on the same footing as the principal debtor so as to enable the Financial Corporation to obtain relief against the properties of the principal debtor as well as the surety [515E G] If considered in this perspective, the expression "enforcing the liability of any surety" in clause (aa) of section 31(1) would mean enforcing the liability of a surety in the same manner as the liability of principal debtor is enforced, by attachment and sale of property keeping in view that the proceedings under sections 31 and 32 of the Act are akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree.
The relief of a money decree sought against the sureties respondents 2 to 4 was not maintainable and the said relief could not be granted to the appellant in proceedings under section 31 of the Act.
As a result, the petition filed by the appellant must be dismissed and for the same reason this appeal must fail.
[515G 516A, 516D E] Munnalal Gupta vs Uttar Pradesh Financial Corporation & Anr.
,A.I.R. 1975 Allahabad 416; Thressiamma Varghese vs K. section F. Corporation, A.I.R. 1986 Kerala 222; Maharashtra State Financial Corporation vs Hindtex Engineers Pvt. Ltd., ; Kayastha Training & Banking Corporation Ltd vs Sat Narain Singh, All. 433; M. K. Ranganathan & Anr.
vs Government of Madras & Ors.
,[1955] 2 S.C.R. 374; The Central Talkies Ltd., Kanpur vs Dwarka Prasad, ; , referred to.
Maganlal V. MIS.
Jaiswal Industries, Neemach & Ors., ; ; M/s. Everest Industrial Corporation & Ors.
vs Gujarat State Financial Corporation, [1987] 3S.C.C. 597; Parkash Playing Cards Manufacturing Co. vs Delhi Financial Corporation, ; Gujarat State Financial Corporation V. Natson Manufacturing Co. Pvt. Ltd. & Ors., , distinguished.
West Bengal Financial Corporation vs Gluco Series Pvt. Ltd.
,A.I.R. , approved.
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Civil Appeal Nos. 826 & 827 28 of 1991.
From the Judgment and Order dated 10.9.1986 of the Kerala High Court in M.F.A. Nos.
48 & 291 of 1991.
K. Sudhakaran, Attorney General, T.S. Krishnamurthy Iyer, A.S. Nambiar, T.R.G. Wariyar, P.S. Poti, P.K. Manohar, Shanta Vasudevan, K.R. Nambiar, P.K. Pillai and V. Jai Kumar for the appearing parties.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Special leave granted.
Civil Appeal arising out of Special Leave Petition (Civil) No. 7314 of 1987 and Civil Appeals arising out of Special Leave petitions (Civil) Nos.
6837 38 of 1987 are from common Judgment of the High Court of Kerala dated 10.9.1986 passed in MFA Nos. 48 and 291 of 1981.
The appellant Bhavani Tea and Produce Co. Ltd., hereinafter referred to as `the company ' is a public limited company engaged mainly in plantations of Tea, Coffee, Cardamom, Rubber and other plantation crops over an extensive area in the Western Ghats close to the border of the States of Kerala and Tamil Nadu.
On the basis of their title deeds, the company claimed to have purchased an extent of 3273.72 acres of land, but it and only 3, 151.20 acres in occupation.
Bulk of the plantations were purchased by the company in 1946 from M/s. B.B. Rubber Estates Ltd., hereinafter called `the vendors ', and the remaining estates acquired in 1955 and 1956.
The vendors were in possession of 3151.20 acres of land situated in surveyed lands in R.S. Nos.
2,3,3/1 and 5/1 in Sholayar village, mannarghat Taluk of palghat district which belonged in `Jenmom ' to mannarghat mooppil Sthanam and the vendors established the plantations taking the same on Verumpattam lease in the year 1935.
The plantations are now known as Siruvani Group of Estates of four divisions namely, Siruvani, Varddymalai, Elamali and Halton.
The Kerala Private Forests (Vesting & Assignment) Act, 1971 (Act 26 of 1971), hereinafter referred to as `the Vesting Act ' an Act to provide for the vesting in the Govt.
private forests in the State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation, extending to the whole of Kerala State, received the assent of the President on 23.8.1971, and as provided in its 554 Section 1(3) it was deemed to have come into force on the 10th day of May, 1971 which was also declared to be the appointed day.
The preamble to the Vesting Act indicated that the private forests in the State of Kerala are agricultural lands and the Government considered that such agricultural lands should be so utilised as to increase the agricultural production in the State and to promote the welfare of the agricultural population of the State.
The statement of objects and reasons also said that the private forests as defined in the Kerala Land Reforms Act, 1963(1 of 1964) were exempt from the ceiling thereunder and that with high density of population there was scarcity of land and it was against the Directive Principles of State policy to allow a few persons to be in ownership and control of these agricultural lands.
In other words, the object of the Vesting Act was to distribute the private forest lands among the agriculturists and agricultural labourers for agriculture.
The forest officials having commenced survey over the company 's plantations ' land from 28.6.1997, it approached the Tribunal under Section 8 of the Vesting Act for a declaration that no portion of the land in R.S. Nos. 2,3,3/1 and 5/1 in Sholayar Village, Nannarghat Taluk, Palghat District shown in the schedule to the application was liable to vest in the State under the Vesting Act.
The Company maintained that at the time of the Vesting Act coming into force out of the company 's lands about 10 acres were covered by roads, 50 acres by buildings, 490.14 acres by tea plants, 700.00 acres by coffee plants, 798.56 acres by cardamom and 250 acres by rubber plantation.
Besides an area of 60 acres was maintained as windbelts and an area of 189.50 was reserved for the purpose of firewood meant for the preparation of rubber for the market.
The company claimed that the entire area was thus principally cultivated with tea, coffee, cardamom and rubber and for the purposes ancillary thereto and that total 2,338.70 acres were utilised for plantations by the end of 1969.
The entire area having stated to have been principally cultivated, the company claimed that no portion thereof was covered by the exproprietory provisions of the Vesting Act.
The respondent State of Kerala stated before the Tribunal that the plantation area in the schedule property had already been exempted, and that only such areas as fell within the definition of private forests in the Vesting Act, mainly areas full of forest trees aged 20 to 100 years were being surveyed and demarcated as vested forests.
The state also disputed the area under plantations and the areas claimed to have been reserved for fuel and fire wood etc.
It was also stated that in favour of the fourth 555 respondent which was a cooperative farming society 190.54 hectares of the area taken over as vested forests as already assigned and the society got possession of that area from out of uncultivated forest tracts for itself.
An Advocate Commissioner was appointed by the Tribunal to prepare a plan and report regarding the properties claimed as vested forests out of the schedule land and he submitted Exhibit C 1 plan, C 2 and C 3 interim reports and C 4 final report.
On the basis of Exhibit C 4 report the company amended its application.
The earlier Schedule was retained as `A ' Schedule.
An area of 1397.60 acres (566.11 hectares) identified as plot Nos. 1 to 69 were located by the Commissioner as areas claimed by the respondent as vested forests and those 69 plots were included in the `B ' Schedule to the application after the amendment.
The controversy thenceforth related only to some of the plots in `B ' Schedule.
The company examined PWs.
1 to 3 and produced documents A1 to A24 in support of its claim, while the respondents examined RW 1 and marked Exhibit B 1 only.
On the basis of the evidence available before it and mainly depending upon the observation of the commissioner, the Tribunal held that plot Nos.
2,9,12,13,15,16,24,25,29,35,48,49 and 56 had been brought under cultivation prior to 14.12.1949, and therefore, did not fall within the purview of the Madras Preservation of Private Forests Act(hereinafter referred to as M.P.P.F. Act), and therefore, held to be outside the purview of the Vesting Act.plot Nos. 4, 5, 7, 10, 19, 20, 21, 27, 32, 34, 42, 43, 45, 47, 52, 53, 54, 57, 60, 66 and 67 were held to be used principally for the cultivation of tea, coffee, and cardamom and therefore were to be excluded from the purview of the Vesting Act in view of the provisions contained in Section 2(f) thereof.
The remaining plots 1, 3, 6, 8, 11, 14, 17, 18, 22, 23, 25, 28, 30, 31, 33, 36, 37, 38, 39, 40, 41, 44, 46, 50, 51, 51A, 55, 58, 59, 61, 62, 63, 64, 65, 68, and 69 were found to be not excludable under Section 2(f) or to be exempted under Section 3 of the Vesting Act.
The Tribunal thus allowed the company to retain 206.06 acres out of B Schedule lands as excluded/exempted from the provisions of the vesting Act and declared total 1,184.68 acres as vested forests under the Vesting Act.
From the Tribunal 's order both the company and the State appealed to the High Court which by the impugned common Judgment 556 dated 10.9.86 partly allowed the company 's MFA No. 48 of 1981 to the extent of modifying the order of the Tribunal and declaring that plot Nos. 1, 3, 6, 8, 17, 22, 23, 31, 51A, 68 and 69 were to be excluded from vesting; and also partly allowed the State 's MFA Nos. 291 of 1981 to the extent of declaring that plots Nos. 12, 13, 15, 16, 26, 27, &, 56 were to vest in the state.
The result was that the company would be entitled to retain plot Nos. 1 to 10, 17, 19 to 24, 31, 32, 34, 35, 42, 43, 45, 47, 48, 49, 51A, 52 to 54, 57, 60 and 66 to 69 totalling 144.13 acres in B Schedule properties and the remaining plot Nos. 11 to 16, 18, 25, to 29, 30, 33, 36 to 41, 44, 46, 50, 51, 55, 56, 58, 59 and 61 to 65 would vest in the State.
The High Court also observed that out of the excluded areas less than 70 acres alone were planted areas, meaning thereby lands which were principally used for the cultivation of tea, coffee and cardamom under Section 2(f) (B) of the Act and that the remaining area could be used for ancillary purposes.
The reservation for roads, water sources etc.
which were in use at that time were also allowed.
The High Court also directed: "One existing road each to connect each of the different blocks of plantations along the shortest route lying along the vested areas will be allowed to be used and maintained by the applicant at its cost, but in roads passing through the vested forests will be under the control of the respondents.
The existing roads providing access from the Estate to the public road will also be maintained by the applicant at its cost subject to the above reservation.
the present case of water sources, streams and channels located within the vested forests for supply of drinking water or as source for irrigation and for supply for purposes of the factories etc.
will be preserved.
The respondents will not interfere with any such user of these facilities." Thus out of the total 3, 151.20 acres 1, 753.60 acres are admitted not to have been vested under the Act.
Out of the remaining 1,397.60 acres 609.91 acres are admitted to be private forest and hence vested under the Act.
This covers plot Nos. 11, 18, 25, 28, 30 and 63.
Out of the remaining plots, namely, 1 10, 12 17, 19 24, 26, 27, 29 62 and 64 69, the Tribunal allowed 33 plot totalling 206.06 acres.
The High Court by the impugned order allowed 36 plots totalling 144.13 acres.
The result is that excluding the plots included in the peripheral area of virgin forests of 609.91 acres, the dispute is now confined only to following plots totalling 641.73 acres.
557 Plot 12 27.50 acres Plot 13 25.08 acres Plot 14 3.67 acres Plot 15 1.65 acres Plot 16 3.82 acres Plot 26 10.70 acres Plot 27 10.58 acres Plot 29 8.10 acres Plot 33 16.20 acres Plot 36 14.87 acres Plot 37 9.63 acres Plot 38 5.26 acres Plot 39 6.37 acres Plot 40 32.42 acres Plot 41 26.32 acres Plot 44 84.06 acres Plot 46 5.31 acres Plot 50 30.96 acres Plot 51 44.11 acres Plot 55 13.12 acres Plot 56 24.84 acres Plot 58 75.19 acres Plot 59 73.03 acres Plot 61 7.56 acres Plot 62 23.45 acres Plot 64 9.21 acres Plot 65 48.72 acres Total : 641.73 acres 558 Both the company and the State of Kerala have filed Special Leave Petition from the common order of the High Court and are given special leave.
Both the company and the State having claimed these plots under the provisions of the Vesting Act and the Custodian and the Tribunal on the basis of the Commissioner 's report and evidence adduced before it as also the High Court having already found the facts as regards these plots we are of the view that the scope of this Court in this Appeal under Article 136 of the Constitution of India is rather limited.
Both Mr. Krishnamurthy Ayer for the company and Mr. P.S. Poti for the State have argued this case with dexterity presenting the meticulous details and explaining the relevant statutory provisions.
Mr. Krishnamurthy emphasised that these disputed plots must be held to have been principally used for cultivation of tea, coffee, rubber, cardamom and cinnamon which are the crops envisaged under the Vesting Act and for purposes ancillary thereto.
Counsel submits that if these plots were not exempted from vesting the company 's plantations will be broken down in untiy, contiguity and economy, and that for deciding the area principally cultivated, the plantations owned by the company must be taken as a whole and not piece by piece or plot by plot as has been done in this case.
Mr. Poti emphasises the objects and purposes of the Vesting Act, namely, to distribute agricultural land to the landless agriculturists and agricultural labourers so as to reduce the scarciy of agricultural land, and not to allow few individuals to remain in control thereof.
Counsel submits that the Vesting Act even did not use the word `plantation ' and therefore private forest has to be determined on the basis of land whereupon the private forest stands irrespective of its size and there could arise no question of the plantation of the company being treated as a whole, and that, at any rate it was the Custodian and the Commissioner who demarcated the plots and company has also been arguing on plot by plot basis.
In deciding these appeals, therefore, this Court has to take the facts as found by the courts and authorities below and examine whether the provisions of the Vesting Act have been applied correctly to those facts keeping in mind its objects and purpose; and so we proceed.
Some acquaintance with the relevant laws of the place may be instructive at this stage.
The company 's plantations are within erstwhile Malabar district.
Baden Powell in Land Systems of British India, Vol.
1 page 95 described Malabar as "curious district on the west coast of India" and as "source of puzzled remarks from reporters on land affairs".
Some of the unique facts about the district according to the 559 author were that there "private property ' in land had existed, while it could not be found anywhere else and it presented a unique history of land holding customs and the development.
When the Mysore Sultan conquered the country the local military chiefs retained their rule over some territorial estates and the families of the chiefs clung to the land or part of it as landlords, calling themselves `Janmis ' and claiming to be, in facts absolute landlord.
The lower landholders acknowledged the `Janmis ' as their superior.
The reports compiled showed that "almost the whole of land in Malabar, cultivated and uncltivated, was private property and held by "Jemnum" (Janmam), right which conveys full absolute property in the soil. . " Thus the janmis became the proprietors.
We find mention of this `Jenmom ' right in the sale deeds of the company.
The meaning of the words `Janmam ' and Janmi ' and their rights envisaged in Gudalur janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (24 of 1969) were considered in Balmadies Plantation Ltd. & Anr.
vs State of Tamil Nadu, ; The exclusive right to, and herditary possession of the soil in Malabar is denoted by word janmam which means birth right and the holder therof is Known as Janmi, Janmakaran or Mutalalan.
In other words "Janmam" is a hereditary proprietorship in the freehold property in Kerala.
Janmam interest has been described as proprietory interest of the landlords in lands and such a right is described as `estate ' in the Constitution.
This was followed in the Kannan Devan Hills Produce vs The State of Kerala and Anr., [1972]2 SCC 218.
The Statement of Objects and Reasons of the Vesting Act and the definition of private forests under the Act were examined in State of Kerala & Anr.
vs The Gwalior Rayons Silk Mfg.
(Wvg.) Co. Ltd. etc.
; It was observed by Palekar, J. that the Vesting Act purported to acquire forests land without payment of compensation for implementing a scheme of agrarian reform by assigning lands on registry or by way of lease to the poorer section of the agricultural pouplation.
This was done after reserving certain portions of the forests as might be necessary for purposes "directed towards the promotion of agriculture for the welfare of the agricultural population or for purposes ancillary thereto.
" It was observed that extensive areas of private forests were available in the Malabar district which could be acquired and distributed and that the private forest lands of Malabar district were contiguous and formed one long belt of a mountainous terrain now forming part of the State of Kerala.
It was also observed that plantations of tea, coffee, rubber, cardamom, cinnmon and the 560 like were grown on extensive scale in these forests and industries had taken leases of vast areas of these forests for those pruposes.
This Court observed: "In recent years industrialists have taken leases of vast areas of these forests from their owners and a fraction of the same has been brought under cultivation by planting eucalyptus and other types of trees useful for paper and other industries.
Large areas in these forests seem to be even now in their pristine form but are capable of being utilized by absorbing a large proportion of the population by setting them on the land.
These forests, therefore, have attained a peculiar character owing to their geography and climate and the evidence available to us shows that vast areas of these forests are still capable of supporting a large agricultural population.
" This Court quoted from paragraph 6 of the Judgment in V. Venugopala Varma Rajaa vs Controller of Estate Duty, Kerala, "It is well known that the extensive areas of different varieties of plantations that we have got in this State were once forest land; and it is also equally well known that year after year large areas of forest lands in this State are being cleared and converted into valuable plantations.
In the absence of exceptional circumstances such as the land being entirely rocky or barren for other reasons all forest land in this State are agricultural lands in the sense that they can be prudently and profitably exploited for agricultural purposes.
" The scheme of the Vesting Act was also examined while upholding its validity.
The Madras Preservation of Private Forests Act 1949 (Madras ACt XXVII of 1949) which received the assent of the Governor General on the 10th December, 1949, hereinafter referred to as `the M.P.P.F. Act ', was an Act to prevent the indiscriminate destruction of private forests and interference with customary and prescriptive rights therein.
Under sub section (2) of Section 1 thereof, that Act applied (i) to private forests, in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres.
By an Explanation added thereto by Section 2(a) of the Madras Preservation of Private Forests (Second Amendment) Act, 1954 (Madras Act XVIII of 1954), it was explained that nothing in this clause shall be deemed to apply to any land which was brought under fugitive or other cultivation prior to the 14th December, 1949 by an owner or any person claiming under him.
Thus the company 's plantations, if cultivated before that date 561 would be excluded.
The words `forest ' is defined in Section 2 clause (a) of the M.P.P.F. Act: "forest includes waste or communal land containing trees and shrubs, pasture land and any other class of land declared by the State Government to be a forest by notification in the Fort St. George Gazette." "Communal ' land meant any land of the description mentioned in sub clause (a) or sub clause (b) of clause (16) of section 3 of the Madras Estates Land Act, 1908.
There is nothing in evidence in the case to shown that the company 's plantations area was a forest under the M.P.P.F. Act.
The Kerala Forest Act, 1961 (Act 4 of 1962) was an Act to unify and amend the law relating to the protection and management of forests in the State of Kerala and it extended to the whole of the State of Kerala.
This Act repealed the Travancore Cochin Forest Act, 1951 (Act III of 1952) and the Madras Forest Act, 1882 (XXI of 1882) and the Madras Wild Elephants Preservation Act, 1872 (Act I of 1873) as in force in the Malabar district referred to in sub section (2) of section 5 of the State Reorganisation Act, 1956.
The M.P.P.F. Act in so far as it applied to Malabar district was not repealed.
The Kerala forest Act did not itself define `privat forest '.
The Kerala land Reforms Act, 1963 (Act I of 1964) was a comprehensive legislation relating to land reforms in the State of Kerala and it extended to the whole of the State.
Sub section (7) of section 2 defined the word `cultivate '.
Clause (15) of section 2 defined `garden ' to mean land used principally for growing cocoanut trees, arecanut trees or pepper vines, or any two or more of the same.
As defined in clause (38) `nilam ' means land adapted for the cultivation of paddy.
Under clause (34) `malabar ' means the Malabar District referred to in sub section (2) of section 5 of the .
Under clause (44) plantation means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon (hereinafter in this clause referred to as: `plantation crops ') and includes(a) land used by the said person for any purpose ancillary to the cultivation of plantation or for the preparation of the same for the market. . (C) agricultural lands interspersed within the boundaries of the area cultivated by the said person with plantation crops not exceeding such extent as may be determined by the Land Board (or the Taluk Land Board) as necessary for the protection and efficient management of such cultivation.
Under the Explanation, lands used for the construction of the office buildings, godowns, factories, quarters for workmen, hospitals, school and play grounds shall be deemed to be lands used for the purposes of sub clause (a).
562 Thus under the Act `plantation ' has been defined to include areas principally cultivated with plantation crops and the lands used for ancillary purposes.
As defined in clause (47) of the Land Reforms Act, `private Forest ' means a forest which is not owned by the Government, but does not include (i) areas which are waste and are not enclaves within the wooded areas; (ii) areas which are gardens or nilams; (iii) areas which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and (iv) other areas which are cultivated with pepper, arecanut, cocoanut, cashew or other fruit bearing trees or are cultivated with any other agricultural crop.
Chapter III of the Act dealt with restriction on ownership and possession of land in excess of ceiling area and disposal of excess lands.
Section 81 dealt with exemptions and said that the provisions of this Chapter shall not apply to, amongst others, (d) private forests; (e) plantations.
Section 82 prescribed the ceiling area and sub section (6) thereof provided that in computing the ceiling area, lands exempted under section 81 shall be excluded.
Thus the private forests and plantations were excluded from ceiling area under the Land Reforms Act.
The provisions of the Vesting Act which was enacted in 1971 have, therefore, to be interpreted keeping in mind the relevant provisions of the above Acts in so far as plantations and private forests are concerned.
`Private forest ' as defined in Section 2 (f) of the Vesting Act means: "[1] in relation to the Malabar district referred to in sub.
section (2) of section 5 of the (Central Act 37 of 1956) (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 19.19, applied immediately before the appointed day excluding (A) lands which are gardens or nilams and defined in the Kerala Land Reforms Act, 1963 (1 of 1964) (B) lands which are used principally for the cultivator of tea, coffee, cocooa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of 563 such Crops or for the preparation of the same of the market.
Explanation: Lands used for the construction of office building, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit baring trees or are principally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.
(2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas.
Explanation: For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;" Section 3 of the Vesting Act whereunder private forests were to vest in the Government said: "3.
Private forests to vest in Government.
(1) Notwithstanding any thing contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub section (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
564 (2) Nothing contained in sub section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 [1 of 1964] or any building or structure standing thereon or appurtenant thereto.
Explanation.
For the purposes of this sub section, `cultivation ' includes cultivation of trees or plants of any species.
(3) Nothing contained in sub section 1 shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under section 82 of the said Act.
(4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub section (2) or sub section (3), be deemed to be lands to which chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be `other dry lands ' specified in Schedule II to the said Act." Section 4 of the Vesting Act provided that private forests after being vesting in the State were to be deemed to be reserved forests, and Section 5 provided for eviction of persons in unauthorised occupation of any such private forest.
Section 6 provided for demarcation of boundaries of the private forests vested in the Government by the Custodian.
We may now take the areas in dispute as stated above with their location and plantation.
In the sketch map Annexure D, the green coloured area is the planted area and it was not claimed by the State.
The blue coloured plots were also excluded from vesting and were allowed to the company by the High Court; and the remaining plots are disputed ones and are coloured pink and violet.
Mr. Poti points out that the original sketch map was not shaded and that the water tank and the dam were not shown therein.
There is, however, no dispute as to the colouring indications which are helpful for identification.
565 The areas on the periphery, according to the Commissioner, are forest area namely plot Nos. 11 (76.70 acres), 18 (28.36 acres), 25 (11.88 acres), 28 (90.79 acres), 30 (77.93 acres) and 63 (324.25 acres).
The total of this peripheral areas come to 609.91 acres.
Admittedly, these areas are virgin forests which as per the Vesting Act vested in the State.
We have no hesitation in confirming this finding.
According to Mr. Poti, to the entire North of the company 's estates, there are vested forests, namely, LGB Estates, Kakkanampara Estates and Malikkal Estates which are vested forest areas.
In the Eastern isolated estates, namely, upper Varadimullai Estates there is coffee plantation on plot Nos. 66, 67, 68, and 69 which have been rightly given to the company.
Regarding plots 12, 13, 15, 16, 26, 27, 29, and 56, Mr. Krishnamurthy submits that the Tribunal on the basis of the Commissioner 's report, Ext.
C 4, found these plots to have been cultivated prior to 1949.
There were reminiscences of the old plantations in these plots, of course they became decayed.
The Tribunal held that since these plots were brought under cultivation prior to 1949 and the provisions of the M.P.P.F. Act excluded these areas from definition of private forests, they could not be held to be forests as on 10.5.1971 under the Vesting Act.
The High Court, it is submitted, has not been shown to have reversed the findings of the Tribunal.
Mr. Poti submits that these plots are contiguous to forest areas and have rightly been given by the High Court to the State, though the Tribunal gave those to the company.
From the map it appears that on the other sides they are also contiguous to planted areas, excepting plot No. 56 which though connected with vested forests by a narrow strip, is almost surrounded by areas excluded from vesting by the High Court.
The company claimed these areas as principally cultivated areas and not included in the peripheral area.
The High Court has held that plots 12, 13, 15, and 16 are not principally planted as cultivation has been abandoned and the area "reverted to nature".
The conclusion that the area reverted to nature is presumably based on the observation of the Commissioner that the plantations were abandoned about 40 years ago as evidenced by the presence of scattered old plants, of shade trees and fruit bearing trees here and there such as silver oak trees, orange trees, guava trees, dadap trees and albezia which could not be of natural growth.
The Commissioner also observed that the condition of the estate was really miserable due to lack of proper maintenance and the plants were decayed or destroyed.
The explantation that due to continuous labour trouble in the previous 4 or 5 years, the estate could not be maintained 566 properly was not accepted.
For this reason the Commissioner expressed that the forest department had treated these areas as abandoned plantations and so vested forest and not as areas principally cultivated for the purpose of the Act and as according to the High Court "the area had reverted to nature decades ago and such reversion was naturally as forest.
" The High Court did not record any finding that these areas were forests either in 1949 or on 10.5.1971.
Its legal implication was not considered by the High Court.
The Commissioner on the other hand found about plot Nos. 12 and 13 that these were old plantation areas and the plants were aged 40 to 50 years and that almost all the plants were senile due to old age and that there were 100 to 200 coffee plants per acre and there were old silver oak trees and dadap trees which were planted as shade trees.
The Commissioner also found that from plot No. 13 old coffee plants were cut and removed by the cooperative society people who cleared the under growth of the area whereafter new saplings were sprouted out of the old coffee plants cut by the society people and there were good growth of young plants which would start to yield.
Similarly plot No. 15 was found to be an old coffee planted area with scattered coffee plants aged 30 to 40 years and similar shade trees.
Plot No. 16 was also found to be coffee plantation.
Similarly Plots 26 and 27 were found to be old coffee plantations.
Plot No. 27 was found to be a pucca cardamom area with plants aged 15 years, and was allowed by the Tribunal as a cultivated area.
The High Court, however, held that it reverted to nature.
Similarly, plot No. 29 was excluded by the Tribunal as an area not covered by the M.P.P.F. Act since they were cultivated prior to 1949 which finding the High Court has not directly reversed.
Plot no 56 was considered by the High Court with Plot No. 49, the extent of the plots being 24.84 acres and 0.89 acres, respectively, The Commissioner found 50 old rubber trees in Plot 49 and 600 older rubber trees in Plot 56 and both areas to have been neglected and abandoned and not used as a rubber plantation for a long time and definitely not on 10.5.1971.
The High Court concluded that 500 rubber trees in an area of 25 acres would not make it "principally cultivated with rubber".
since the average number of trees per acre, according to the publication of the Rubber Board, is from 140 to 160 per acre (vide Manual of Rubber Planting in India).
The High Court exempted Plot No. 49, but held Plot No. 56 liable to vest in the State.
Some of these plots having been planted and still containing old plants and shade trees the High Court applied the theory that the areas reverted to nature.
This leads to the question as to the meaning of forest and when, if at all, a particular plantation may be said to have reverted to nature.
567 In Words and Phrases Legally Defined, Vol. 2, p. 269, `forest ' means: "A certain territorie of woody grounds and fruitful pastures, privileged for wilde beasts and foules of forest, chase and warren, to rest and abide in, in the safe protection of the King, for his princely delight and pleasure, which territorie of ground, so privileged, is meered and bounded with unremovable marks, meeres, and boundaries, either known by matter of record, or else by prescription, and also replenished with wilde beasts of vererie or chase, and with great coverts of vert (i.e. green leaved trees, bushes, etc.) for the succour of the said wilde beasts, to have their abode in: for the preservation and continuance of which said place, together with the vert and venison, there are certain particular laws, privileges, and officers belonging to the same, meete for that purpose, that are only proper unto a forest, any not to any other place.
" The earliest of the Forest Laws in England is said to be the Charter of the forest which was issued in 1217 by Henry, as mentioned in Pollock and maitland 's History of English Law, Vol. 1, p. 179.
The forestal rights of the crown consisted essentially of the King 's rights to use the land (forest) whether belonging to himself or another for hunting game and for preserving the game and for preserving the land in such a way as to give maximum shelter and free room for the game.
The Forest Laws were applied to royal forests and were designed to protect these rights.
The medieval forest law in England has now been abrogated except in so far as it relates to the appointments and functions of verderers.
According to Mozley and Whiteley 's Law Dictionary `forest ' as a legal right is defined as a right of keeping, for the purpose of hunting, the wild beasts and fowls of forest, chase, park and warren, in a territory or precinct of woody ground or pasture set apart for the purpose.
According to Black Law Dictionary, `forest ' means: a tract of land covered with trees and one usually of considerable extent.
It is said that in old English law a certain territory of wooded ground and frutiful pastures, privileged for wild beasts and fowls of forest, chase, and warren, to rest and abide in the safe protection of the prince for his princely delight and pleasure, having a peculiar court and officers.
Thus, treatment of a certain extent of land as forest was implied.
The fact that an extent of land has not been so treated or declared would, therefore, be relevant in determining 568 whether that land constituted a forest.
This rule is found to have been applied by the Kerala High Court.
In State of Kerala vs Anglo American Direct Tea Trading Co. Ltd., where the respondents were owners of tea estates, the areas planted with tea had been excluded from the operation of the vesting provision of the Vesting Act.
There were portions of tea estates where there were eucalyptus plantations.
It was claimed by the respondents that those were areas which were required for ancillary purposes of the tea plantations, ancillary in the sense that the Eucalyptus trees grown in the Eucalyptus plantations served as fuel for processing the tea for the market.
There was also a plea that the lands having been converted into Eucalyptus plantations long before the appointed day under the Vesting Act such areas could not be said to be forests as on 10.5.1971 and, therfore, there was no scope for vesting of such areas in the State.
The latter plea having been accepted by the Tribunal and consequently the area where there were Eucalyptus plantations held not to have vested in the State, the Custodian challenged the findings in appeal before the High Court and the cases having related to lands outside the Malabar District to which Section 2(f) (2) of the Vesting Act was applicable, the State contended that Eucalyptus plantation was a forest.
The question therefore arose whether the land which had been converted into eucalyptus plantations could be said to be forest within the meaning of the terms in Section 2(f) (2) of the Vesting Act.
Subramonian Poti, J. speaking for the Division Bench consulted the dictionary meanings of forest as: "a large uncultivated tract of land covered with trees: a tract of woodland and open uncultivated ground","a large tract of land covered with trees and underbush; extensive wooded area.
" It was observed that the word `forest ' was derived from latin foris meaning outside, the reference being to village boundary or fence, and must have included all uncultivated and uninhabited land.
The World of the Knowledge Encyclopaedia Vol.
10 defines `forest ' at page 2201 as "a circuit of wooded ground and pastures, known in its bounds and piviledged for the abiding of wilde beasts and fouls of forest, chase and carron to be under the King 's protection for his princely delight.
" It was also found that the Abridged Glossary of Technical Terms published by Forest Research Institute and Colleges, Dehra Dun, page 52, the term forest was understood as an area set side for the production of timber and other forest produce, or maintained under woody vegetation for certain indirect benefits which it provided.
For example, climatic or protective.
It was further observed that in the context in which the term `private forest ' had been used in the Act it was evident that it applied to lands other than those 569 on which human skill, labour and resources had been spent for agricultural operations.
In Malankara Rubber & Produce Co. & Ors. etc.
vs State of Kerala & Ors.
, ; , it was held that lands under eucalyptus or teak which were the result of agricultural operations normally would be agricultural lands and not forests, but lands which were covered by eucalyptus or teak growing spontaneously as in a jungle or a forest, would be outside the purview of acquisition under Kerala Land Reforms Act.
In State of Kerala & Anr.
vs Nilgiri Tea Estates Ltd. [1988](supp) SCC 79, the view taken by the High Court that eucalyptus trees planted in a tea estate for supply of fuel for the manufacture of tea, were not covered by the vesting provisions of the Vesting Act was upheld.
There the eucalyptus trees were raised not for a forest but for supply of fuel necessary for the manufacture of tea which was the industry carried on by the respondent company.
In State of Kerala & Anr.
vs K.C. Moosa Haji & Ors.
A Full Bench of the Kerala High Court approved the observation of Poti, J. in State of Kerala vs Anglo American Direct Tea Trading Co. Ltd. [supra] that forest was not a term defined in the Act and that with reference to lands in the malabar area to which the M.P.P.F. Act applied on the appointed day the test for determination whether the land was private forest was different and that if the land was shown to be private forest on the date the M.P.P.F. Act came into force it would continue to be a private forest even if it had actually ceased to be a forest unless one or other of the exclusions in clauses A to D in the definition applied.
it was contended therein that the Vesting Act applied only to those lands which were forests under the M.P.P.F. Act immediately before 10.5.1971, inasmuch as the lands in question had ceased to be forest having been clear felled and as such had gone out of the purview of the M.P.P.F. Act and consequently they were not private forests for the purpose of the Vesting Act also.
Rejecting the contention the Full Bench held that if the M.P.P.F. Act was applicable to the land in 1949 and if it continued to apply to it up to 10.5.1971, that land would be a private forest for the purposes of the Vesting Act.
The question was not whether there was a forest in existence in 1971; but was whether there was any land in 1971 to which the M.P.P.F. Act was applicable in 1949 and continued to be under its coverage till 1971.
As the lands involved in that case were all private forests as definded in the Act, clear felling and replanting were carried out with the permission of the District Collector.
It was held that 570 denudation could not be held to have put the land out of the purview of the Act and that once the Act was applicable to the area in 1949 nothing done by the owners of the area or others was capable of putting an end to such applicability to that area.
We respectfully agree with this view.
The definition of private forest given in Section 2(f) of the Vesting Act and Section 2(47) of the Kerala Land Reforms Act were considered by K. Jagannatha Shetty, J. in Gwalior Rayons Silk Mfg.(Wvg.
) Co. Ltd. vs The Custodian of Vested Forests, Palghat & Anr. ; JT The lands involved in that case were all forests as defined in the M.P.P.F. Act, 1949 and continued to be so when the Vesting Act came into force in 1971.
It was observed that the definition of private forests as was applicable to the Malabar district was not general in terms but limited to the area and lands to which the M.P.P.F Act applied and exempted therefrom land described under sub clause (A) to (D).
This significant reference to M.P.P.F. Act in the definition of private forests in the Vesting Act made all the difference in the case.
The M.P.P.F. Act was a special enactment by the erstwhile Madras State to preserve the private forests in the district of Malabar and erstwhile South Kanara district.
The scheme appeared to be that if the land was shown to be private forest on the date on which the M.P.P.F. Act came into force, it would continue to be a forest even if there was subsequent replantation.
Accordingly it was held that the lands which were forests as defined M.P.P.F. Act and continued to be so when the Vesting Act came into force would continue as forests as under that Act.
The reverse question is involved in this case, namely if the land was not private forest but plantation under the M.P.P.F. Act and was similarly not private forest but plantation on 10.5.1971, it could not, without anything more, become private forest thereafter even though it was not under the same efficient or successful plantation as it was earlier.
Whether the plantation yielded any crop or not was for the owners to decide and not by the authorities under the Vesting Act, unless it did make specific provisions to cover such a situation.
We have not been shown any such provision or any provision as to such land reverting to nature.
Nature, according to Collings English Dictionary means all natural phenomena and plant and animal life as distinct from man and his creations; a wild primitive state untouched by man or civilization.
According to Shorter Oxford English Dictionary natural vegetation means self sown or planted; and not cultivated.
Uncultivated or undomesticated plants or animals.
There is 571 no finding as to prevalence of such a condition in these plots.
Mr. Krishnamurthy submits that the Ordinance which preceded the Vesting Act promulgated on 10.5.1971 included the private forests as defined in the M.P.P.F. Act.
We have seen that the Vesting Act gave two definitions of private forest; the first was in relation to the Malabar district referred to in sub section (2) of section 5 of the (Central Act 37 of 1956).
In that district private forest meant any land to which the M.P.P.F. Act applied immediately before the appointed day excluding the lands which were gardens or nilams as defined in Kerala Land Reforms Act, 1963 (Act 1 of 1964) and lands which were used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.
It is accordingly argued that the company 's plantations did not constitute private forest either under the M.P.P.F. Act or under the Kerala Land Reforms Act and as such the entire area of the company 's plantations could not have come within the purview of the Vesting Act.
We find force in the submission to this extent, but in view of the objects and purposes of the Vesting Act, it can not be said that there could never be a case of such plantation land being converted to a forest by natural growth or otherwise.
It must necessarily depend on facts.
Mr. Krishnamurthy then submits that even assuming, the Vesting Act applied, the entire plantation area ought to be taken as a unit for the purpose of ascertaining whether there was private forest and not piece by piece or plot by plot as has been done in this case.
If the entire area is taken as a whole, if major portion of the area was found to be cultivated, the whole area ought to be taken as principally cultivated area, small enclaves or patches meant to give rest by rotation should also have been treated as cultivated area.
The entire method adopted by the respondents, counsel submits, was wrong and has immensely prejudiced the company 's case, As regards the concept of reversion to forest, Mr. Poti submits that this applied to a land where Section 2(i) of the M.P.P.F. Act did not apply.
According to him, it applied to two categories, namely, areas of less than 100 acres and areas of abandoned cultivation, in both cases when it was found to be forest on the appointed day i.e. 10.5.1971.
There is no difficulty about the extent of less than 100 acres, but the difficulty is with abandonment.
Mr. Poti submits that the Custodian judged by visual appearance but the Tribunal did not notice 572 clause (2) at all.
We are of the view that mere abandonment would not convert an area into a forest, unless the owner has decided to do so or the appropriate authority has notified it to be so.
Mere visual test would not be enough.
The decision of the owner could, of course, be expressed or implies.
Mr. Poti submits that the definition of forest as given in Section 2(a) is only an inclusive one.
Forest includes waste or communal land containing trees and shrubs, pastural land and any other class of land declared by the State Government to be a forest by Notification issued in the St. George Gazette.
Thus, according to counsel, forest has not been defined in the Act exhaustively nor has it been defined in the Kerala forests Act.
Mr. Poti while admitting that the Kerala Land Reforms Act exempted all plantations, submits that the Vesting Act made drastic curtailments and that when historically interpreted principally planted did not mean with reference to the area but with reference to the crop only inasmuch as the word plantation has not been used at all in the Vesting Act and, therefore, the plantations can not be treated as a unit but only as land and the vesting Act is prospective and not retrospective.
Counsel relied on Gwalior Rayons Silk Mfg.
(Wvg.) Co. Ltd. vs The Custodian of Vested Forests, Palghat & Anr.
(supra) and State of Kerala vs K. C. Moosa Haji (supra).
According to Mr. Poti if the definition permitted, the area could be taken plot by plot inasmuch as there could be a forest of even 1 acre only.
The size of the forest was not material, and the estate as a unit of management is also not material, the concept of plantation itself being absent.
It is submitted that the expression used principally for cultivation in sub clause (B) and "principally cultivated with" in sub clause (C) mean the same thing.
It is further submitted that if the land which was not cultivated in 1949 might have already come under the M.P.P.F. Act.
Division into plots was done by the Commissioner as he found these plots to have been different and the demarcation was of compact areas with few isolated areas, and such a demarcation was contemplated under the Act.
It was pointed out that the company also contested the case on plot by plot basis.
The Tribunal as well as the High Court also proceeded on that basis.
It is pointed out the company objected to the principle of division before the High Court but did not question the correctness of the actual division made and hence the High Court could decide only on plot by plot basis.
We have no difficulty in holding that the forest area is generally described or notified with reference to land in forest laws.
But that does not mean that what stood on the land has to be ignored, particularly in case of plantations which were exempted under the M.P.P.F.Act.
573 While we are not inclined to agree that the entire estate of the company was required to be taken as one whole, we find it difficult to agree that wherever some forest was found inside the company 's estate the Vesting Act would apply.
We find that the M.P.P.F. Act, the Kerala Forest Act, the Kerala Land Reform Acts considered the plantations as units by providing that they would include the land used for ancillary purposes as well.
Therefore, while applying the Vesting Act to such plantations the same principle would be applicable.
It is on record that the estate of the company is divided into four divisions, namely, Siruvani Varadimulai, Elamali and Halton.
In conformity with the idea of plantations, it would be reasonable to take each division as a unit, subject, of course, to natural and geographical factors.
Considered in light of the above principles also we find that plots 13,15,16,26,27,29 and 56 form small portions of the respective divisions and can be taken to have been principally cultivated.
We accordingly have no hesitation to exempt these plots from vesting.
However, considering the scarcity of land and the location of plot No.12 and the fact that the Co operative Society has already been formed, for the ends of distributive justice this plot should be taken to have vested in the State, so that the road will form the boundary of the company 's plantations.
Plot No. 14 of 3.67 acres though a forest area has been claimed by the company as its wind belt.
Mr. Poti submits that this plot is of high elevation but the experts did not agree that it could serve as wind belt.
From the sketch map, however, it is found to have been projecting inside the plantations and that may be sufficient reason for its special consideration.
It should accordingly be exempted from vesting.
After formulating the principles on the basis of the case law, at one stage we were thinking of remanding the case of the High Court for fresh determination in light of the observations made above.
However, there was the consensus that in view of the detailed findings of the Tribunal as well as the High Court this old pending case may be decided by this Court itself instead of remanding it.
We, therefore, decided to do so on the basis of the materials on record.
Plot No. 33 admeasuring 16.20 acres (6.56 hectares) was claimed by the company as originally planted area.
The Tribunal found that at the relevant time there was no evidence of any plantation but there were small forest trees aged 20 years and also wild bushes and shrubs.
The High Court did not specifically referred to this plot.
From the 574 sketch map it is seen that on all sides it is covered by planted area and only to the north by forest.
The company claimed it as an enclave.
There is some building, and a road passing throughout it.
It is a part of the Alamalai Division.
There is nothing to show that this plot was not exempted under the MPPF Act as plantations.
Considering all these factors this plot has to be left as a part of the plantation and exempted from vesting.
Accordingly it is exempted.
Plot No. 36 admeasuring 14.87 acres (6.02 hectares) was found by the Tribunal to be an uncultivated grassy waste land with some scattered forest trees.
As there is no evidence of it ever having been planted, having forests almost on three sides, this plot may be taken to have vested in the State.
Plot Nos.
37 & 38 have been claimed by the company as cardamom plantations.
To the south of these plots there is a strip of plantations.
Plot No. 37 admeasuring 9.63 (3.90 hectares) was found to have been newly planted with cardamom which the company claimed to have been replantation.
Some scattered old cardamom plants aged nearly 15 years here and there were also found.
Similarly Plot No. 38 admeasuring 5.26 (2.13 hectares) was claimed by the company as a cardamom plantation but there were no plants.
Both the plots may, therefore, be treated together as cardamom planted area and as such not vested in the State.
Plot no.64 extending over 9.21 acres (3.72 hectares) contains, as found by the Tribunal, water channel through which water from the forest area was flowing to the water tank constructed at the end of the north channel and that the entire water supply to the tea factory and other residential areas of this building was through this channel.
On both sides of this channel there were some scattered cardamom plants aged 10 15 years.
The High Court dealt it with plot Nos. 62 and 63 but did not mention about the water channel and the plants.
The findings of the Tribunal would justify exemption of this plot from vesting inasmuch as the water supply must be considered to be vital for the plantations and their administration.
Plot Nos. 39 and 40 extending over 6.37 acres (2.58 hectares) and 32.42 acres (13.12 hectares) are contiguous and through these plots passes a road.
They are surrounded on three sides by planted areas and only on one side by LGB estates.
The Tribunal found that plot No.39 was newly planted with coffee the plants being 6 months to 1 year old.
The company stated this area to have been an old cardamom planted 575 area and newly converted into coffee plantation.
Plot No. 40 was claimed to have been a cardamom plantation and the plants to have been destroyed by wild fire the Tribunal found it to be a forest area with trees ages 30 40 years and 15 dadaps of equal age.
There is nothing to show that this was not an exempted area under the MPPF Act or not included in the plantations when the Vesting Act came into force.
The High Court did not find otherwise.
These two plots accordingly have to be exempted from vesting.
The Tribunal found plot No. 41 extending over 26.32 acres (10.65 hectares) to be grassy land with only about 10 to 20 forest trees, wild bushes and undergrowth.
The company said that this area was used for fugitive cultivation by the estate labourers.
The High Court does not appear to have specifically dealt with this plot.
There having been no plantation it was not shown to have been included as forests under the MPPF Act.
In view of the objects and purposes of the Vesting Act it may be treated as to have vested in the State.
Plot No. 44 extending over 84.06 acres (34.62 hectares) was found by the Tribunal as mainly grassy hills with some scattered trees in some portion and not cultivated.
In the High Court it was submitted by the company that there were no forest trees in this area, that there were old tree plantations which were destroyed, and that it was close to the bungalow of the Managing Director, Exhibit A 19 which was the preliminary Land Register showed that this plot was tea area and the same was included in a re planting scheme sanctioned by the Tea Board.
This was also said to be an enclave within the plantations.
The High Court observed that re planting scheme sanctioned by the Tea Board had not been put in evidence and that the recital in Ext.
A 19 by itself could not entitle the applicant to claim exemption on he basis that the plot was a tea area and that Ext.
A 19 could only be a record of representation of the company.
It was not denied that this plot was close to the bungalow of the Managing Director and that there were no forest trees in that area.
It is seen to be extending far inside the plantations in Siruvani division.
There is no evidence to show that this area was not exempted as plantation under the MPPF Act or when the spontaneous growth of forest thereafter.
This plot cannot, therefore, be taken to have vested in the State.
Plot No. 46 admeasuring 5.31 acres (2.15 hectares) was claimed by the company to be an old coffee plantation though the Tribunal found that there were no coffee plants but there were dadaps aged 30 576 to 40 years which were planted as shade trees and some scattered forest trees also.
Neither the Tribunal nor the High Court found the area not to have ever been planted.
The presence of the shade trees proved otherwise.
It is also located to the north of plot No.65 and well inside the plantation and as such may be treated as an enclave.
It has, therefore, to be exempted.
Plot No. 50 is extending over 30.96 acres (12.53 hectares).
The company claimed that it was coffee planted area but subsequently the coffee plants were destroyed by wild fire.
The Tribunal found this to have been a planted area as there were a good number of shade trees such as dadaps which were aged about 40 years and there were a few scattered forest trees aged 30 to 40 years and the area was covered with bushes and wild growth.
The High Court did not exclude this area from vesting on the ground that there were no existing specified crops without considering whether this area was or was not excluded as plantation by the MPPF Act.
This plot is located almost at the centre of Siruvani Division and hardly touched by peripheral plot No. 63.
On north eastern side of this plot, number of houses have been shown in the sketch map.
This cannot, therefore, be taken as vested in the State.
Plot No.51 is described by the Tribunal as a thin forest area with scattered forest trees aged 15 to 20 years and no sort of cultivation or plantation seen.
Plot No. 55 extending over 13.12 acres (5.31 hectares) described by the Tribunal as a forest area with trees aged 40 to 50 years and not cultivated.
The High Court dealt with these two plots together.
The company claimed that plot No. 55 was a part of rubber plantation alongwith plot No.56 which have been exempted and that both these areas were covered by Registration No. 2 of 1964 under the Rubber Act.
At the relevant time the High court observed that the registration survey had not been produced inspite of the statement that the document was available for production or verification and that neither in Ext.
A 13 nor in Ext.
B 1 the applicant have claimed to have any area to be planted with rubber.
The Tribunal further observed that the balance sheet and profit and loss accounts attached to Ext.
A 13 also did not disclose any income from rubber, and no other evidence was produced that there was any rubber plantation.
The High Court did not arrive at any finding that this area was a forest area under the MPPF Act or at the time of the Vesting Act coming into force.
It is surrounded on all sides by plantations and may be taken an enclave.
From its location and the claim of registration under the Rubber Act these two areas cannot be taken to have been vested in the State.
577 The Tribunal treated plot No. 58 of 75.19 acres (30.43 hectares) and plot No. 59 of 73.03 acres (29.15 hectares) together.
The company claimed that the two plots were regularly planted with cardamom but a good number of plants were destroyed by the wild animals which were frequently coming from the nearby Muthikulam Reserve Forest.
But it found that there were only scattered cardamom plants which were 10 to 15 years.
In some portions of the area there were cardamom plants at the rate of 200 250 per acre and in other portion only 100 150 plants per acre.
There were regular forest trees also aged some 50 years but number was not stated.
The Tribunal accordingly observed: "Though the area is planted with cardamom, this portion of the estate is not at all properly looked after or maintained." The High Court dealt with plot 58,59 and 61 together and observed that it contained some cardamom plants which were found among regular forest trees aged about 50 years.
The cardamom plants few in number, 100 150 in some places and 200 250 in other places and aged about 10 15 years as against about 1,000 2,000 per acre which according to PW 3 would be an ordinary number, did not justify the claim that these areas were exempted as cardamom plantation.
Before the High Court it was submitted for the State that cardamom was only a plantation and it would not be found in forest, was only a misapprehension, and that cardamom was a wild plant found in profusion as natural growth in tropical forests.
Encyclopaedia Britanica state that "native to the moist forests of Southern India, cardamoms may be collected from wild plants but most are cultivated in India, Sri Lanka and Guatemala.
" The High Court accordingly concluded that the presence of a few scattered cardamom plants in thickly wooded forests cannot, therefore, justify an asumption that the aera is a cardamom plantation.
There was no finding to the effect that the area is a cardamom plantation.
There was no finding to the effect that this area was private forest under the MPPF Act and when the vesting Act came into force.
These two area are no doubt adjacent to the peripheral plot No. 63 but they extend far inside the plantation.
They cannot be said to have been forests and never brought under plantation.
The number of cardamom plants mentioned is enough to show that these areas were not private forests when the Vesting Act came into force nor they have become so thereafter.
These two areas, therefore, have to be taken not to have been vested in the State.
The result is that plot Nos.33,39,40,44,46,50 51,55,58,59,& 61 also have to be treated as not to have vested in the State under the Vesting Act.
578 As regards the exiting roads falling within the vested areas those shall have such margins on either side of the road as required under the P.W.D rules of the State and shall be maintained and controlled by the company.
No construction of new road by the company in or through the vested areas shall be permissible.
Needless to say that there shall be no restriction as to roads on the company 's own non vested areas.
The result is that the High Court 's Judgment stands modified only to the above extent.
The appeals of the company and the State are partly allowed to the above extent.
We leave the parties to bear their own costs of these appeals.
R.N.J. Appeals partly allowed.
|
Bhavani Tea and Produce Co., a Public Ltd. Company is engaged mainly in plantations of Tea, Coffee, Cardamom, Rubber and some other plantions in the western ghats comprising R.S Nos 2,3, 3/1 and 5/1 in Sholyar village Mannarghat Taluk of Palghat District, Kerala known as Siruvani Group of Estate of four divisions namely, Siruvani, Varddymalai, Elamali and Halton with the total area in its possession being 3, 151.20 acres.
As the forest officials undertook survey over the Company 's plantations under the Kerala Private Forests (Vesting & Assignment) Act, 1971, which had come into force on 10.5.1971, to locate and determine the forest area in the estate that would vest in the State, the Company moved an application under section 8 of the Act before the Tribunal asserting that no portion of the land in the estate as shown in the schedule to the application was liable to vest in the state.
An advocate commissioner was appointed by the state as vested forests.
The Advocate Commissioner in his final report found an area of 1397.60 acres indentified as plots nos.
1 to 69 claimed by the State as vested forests.
551 The Company thereupon amended its application showing these 69 plots as schedule 'B ' to the application.
Out of the total 3,151.20 acres 1,753.60 acres are admitted not to have vested under the Act.
Of the remaining 1, 397.60 acres, 609.91 acres are admitted to be private forest on the periphery of the Estate and hence vested under the Act.
This covers plots Nos. 11, 18, 25, 28, 30 and 63.
Out of the remaining plots, the Tribunal allowed 33 plots totalling 206.06 acres and declared total area of 1, 184.68 acres as vested forests.
Both parties preferred appeals to the High Court which by its impugned judgment partly allowed the appeal of the company as well as of the State.
Both side have again preferred appeals by special leave to this court.
The result of the High Court 's judgment is that the dispute before this Court is now confined only to an area of 641.73 acres covered by plots nos.
12,13,14,15,16,26,27,29,33,36,37,38,39,40,41,44,46,50,51,55, 56,58,59,61,62,64, and 65.
On behalf of the company it has been argued that these disputed plots must be held to have been principally used for cultivation of tea, coffee, rubbers and cardamom etc.
and for purposes ancillary thereto; that if these plots are not exempted, the plantation will be broken down in unity, economy and contiguity and that the plantation must be taken as a whole and not piece by piece or plot by plot.
The argument on behalf of the State was to emphasise the objects and purposes of the vesting Act namely, to distribute agricultural land to landlords, agriculturists/labourers so as to reduce the scarcity of such land, and not to allow few individuals to remain in control.
It was also contended that vesting Act did not use the word 'plantation ' and therefore private forest has to be determined on the basis of land where upon forest stands irrespective of its size.
Keeping in view the detailed findings of the Tribunal as well as the High Court this Court comes to the conclusion that out of the plots which are in dispute now as pointed out above, plot nos.
33,39,40,44,46,50,51,55,58,59 and 61 also have to be treated as not to have vested in the state under the vesting Act.
As regards the existing roads falling within the vested areas these shall have such margins on either side of the road as required under the PWD rules of the state and shall be maintained and controlled by the company.
But no construction of new roads by the company in or through the vested areas shall be permissible.
Thus in partly allowing the rival appeals by modifying the judgment of the High Court to the extent indicated above, this Court, 552 HELD: If the land was not private forest but plantation under the Madras preservation of Private Forest Act and was similarly not private forest but plantation on 10.5.1971, it could not, without anything more, become private forest thereafter even though it was not under the same efficient or successful plantation as it was earlier.
Whether the plantation yielded any crop or not was not for the owners to decide and not by the authority under the Vesting Act, unless it did made specific provisions to cover such a situation.
We have not been shown any such provision or any provision as to such land reverting to nature.
Nature, according to Collins English Dictonary, means all natural phenomena and plant and animal life as distinct from man and his creations; a Wild primitive State untouched by man or Civilzation.
According to Shorter Oxford English Dictionary, natural vegitation means self sown or planted; land not cultivated; uncultivated or undomesticated plants or animals.
There is no finding as to prevalence of such a condition in these plots.[570F 571A] While, we are not inclined to agree that the entire estate of the Company was required to be taken as one whole, we find it difficult to agree that wherever some forest was found under the Company 's estate the Vesting Act would apply.
We find that M.P.P.F. Act, the Kerala Forest Act, the Kerala Reforms Act, considered the plantations as Units by providing that they would include the land used for ancillary purposes as well.
Therefore while applying the Vesting Act to such plantations the same principle would be applicable.
It is on record that the estate of the Company is divided into four divisions.
In conformity with the idea of plantations, it would be reasonable to take each division as a Unit, subject, of course, to natural and geographical factors.
[573 A C] Balmadies Plantation Ltd. & Anr.
vs State of Tamil Nadu, ; ; The Kannan Devan Hills Produce vs The State of Kerala and Anr., ; ; State of Kerala & Anr.
vs The Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd. etc.
; , ; V. Venugopala Verma Rajaa vs Controller of Estate Duty, Kerala, ; State of Kerala vs Anglo American Direct Tea Trading Co. Ltd., ; Malankara Rubber & Produce Co. & Ors. etc.
vs State of Kerala & Ors.
, ; ; State of Kerala & Anr.
vs Nilgiri Tea Estate Ltd., [1988] (Supp) SCC 79; State of Kerala & Anr.
vs K.C. Moosa Haji & Ors., and Gwalior Rayons Silk Mfg.
(Wvg.) Co. Ltd. vs The Custodian of Vested Forests, Palghat & Anr., ; , referred to.
|
Civil Appeal Nos. 12224 of 1975.
From the Judgment and Orders dated 9.4.1974 of the Punjab & Haryana High Court in L.P.A. Nos.
213,214 and 215 of 1973.
S.K. Mehta, Dhruv Mehta and Aman Vachher, for the Appellants.
K.C. Dua for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The appellants are mortgagees.
The respondents are the heirs of Kala Singh, the mortgagor.
Kala Singh executed three mortgages in favour of the appellants Resham Singh, Jaswant Singh and Harbans Singh on September 17, 1962, June 17, 1961 and May 31, 1962 respectively hypothecating the agricultural lands of 16 kanals 16 marlas in each of the first two mortgages and 16 kanals in the third mortgage.
The mortgagor filed an application under Sec. 4 of the Redemption of Mortgages (Punjab) Act, 2 of 1913, for short 'the Act '.
He deposited a sum of Rs.10 in each mortgage and sought redemption of the mortgages.
Ultimately the parties compromised and the mortgagor agreed to pay the balance of Rs.340 to each mortgagee within a month from May 1, 1964.
The Collector passed the order on compromise under s.11 thereof on February 3, 1964.
He committed default in the payment thereof.
The petitions were dismis 617 sed.
He filed separate suits against each mortgagee for redemption within one year under Sec. 12 of the Act on June 12, 1964.
Pending suits he died.
Thereafter the suits were dismissed.
After obtaining mutation of their names in the revenue records the respondents filed separate suits for redemption of the mortgages, but beyond one year as contemplated under Sec.
12 read with article 14 of the Limitation Act, 1903.
The suits were dismissed by the Trial Court and were confirmed by the First Appellate Court and by the High Court in Second Appeals.
But the Division Bench under Clause (10) of the Letter of Patent allowed the appeals and set aside the Judgments and Decrees of the courts below and granted decree of redemption in terms of the prayer by Judgment dated April 9, 1974.
Assailing the legality thereof the appeals have been filed after obtaining leave under the article 136 of the Constitution.
Since common questions of facts and law arise for decision in these appeals, they are disposed of by a common judgment.
The only question that was argued before the High Court and reiterated in this Court is whether the suits are barred by limitation.
The contention of Shri Mehta, the learned counsel for the appellants is that the order passed by the Collector under Sec.
12 of the Act is conclusive between the parties unless the suits are laid under article 14 of the Limitation Act within one year from the date of the Order.
Admittedly, the present suits have been filed beyond such limitation of one year.
The High Court committed a grave error of law in applying the provisions of Sec.
60 of the Transfer of property Act and the ratio of the Privy council in Raghunath Singh & Ors.
vs MT.
Hansraj Kanwar & Ors., A.I.R. 1934 P.C. 205.
He contends that the Act provides a right and remedy to the mortgagor and mortgagees.
Section 12 of the Act makes the order conclusive and binding and Sec.
13 bars second application in that regard unless the suit is filed within one year from the date of the order.
It is not open to the Civil Court to go behind the order of the Collector and enlarge the limitation provided under article 14 of the Limitation Act.
All the provisions of Transfer of Property Act were not applicable to State of Punjab.
Certain Provisions relating to Sale deeds and gifts were made applicable to the State of Punjab with effect from April 1, 1955 and to the area comprised in the erstwhile Pepsu State, w.e.f.
May 15, 1957.
As on the date when the suits were laid, section 60 of Transfer of Property Act did not apply to Punjab and so the ratio in Raghunath Singh 's case (supra) is inapplicable.
The High Court committed manifest error in applying s.60.
He cited decisions of Lahore High Court in support of the contention that the suit shall be laid within one year which we would advert to at a later stage.
Shri Dua, learned counsel for the respondents contended that the High 618 Court is justified in holding that the suit is not barred by limitation and the ratio of the decision cited by the appellants cannot be applied.
The Act is a beneficial legislation giving right to the mortgagors to seek redemption and restoration of possession of the hypotheca in summary proceedings before the revenue courts.
The Act applied only to mortgage of land where the principal money secured under the mortgage does not exceed Rs. 5,000 and the hypotheca does not exceed 50 acres of land.
Section 4 gives right to the mortgagor and other persons entitled to sue for redemption at any time after the principal money becomes payable and before the suit for redemption is barred, by presenting a petition to the collector for a direction i.e. mortgage be redeemed and erstwhile morgages shall put the mortgagor in possession of the hypotheca, after following the procedure in that behalf.
5 to 11 deal with the procedure.
Under section 11 if the Collector, on an enquiry, forms an opinion that the sum is rightly due under the mortgage, he shall, unless he dismisses the petition under Sec. 10, make an order under Sec.6.
If the sum is found larger than the sum deposited, the mortgagor shall deposit the amount with any further sum that may be due on account of interest upto date of the deposit; on making deposit within the period or extended period not exceeding 30 days, thereafter, the Collector shall make an order under Sec.6 thereto.
On committing default by the Mortgagor, the Collector shall dismiss the petition.
Section 6 provides the relief of redemption; of restoration of possession to the martgagor; delivery of the mortgage, deed and payment of the mortgage money to the mortgagee.
Section 12, which is material for the purpose of this case, reads thus: (1) "Saving of suits to establish rights Any party aggrieved by an order made under Section 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to establish his right in respect of the mortgage, but subject to the result of such suit, if any, the order shall be conclusive.
(2) Setting aside ex parte orders or orders of dismissal Notwithstanding anything in this section a mortgagee against whom an ex parte order under section 7 has been made or a petitioner, whose petition has been dismissed in default under section 6 may apply to the Collector to have such order of dismissal set aside, and Collector may in his discretion set aside such order of dismissal, on such terms as to costs or otherwise as he may deem fit; provided that the order of dismissal shall not be set aside unless notice of 619 the application has been served on the opposite party.
" Section 13 creates a bar to make any further petition under the Act by the mortgagor or his successor in interest.
A reading of Sec.
12 clearly postulates that the aggrieved party, be it mortgagor or mortgagee, against an order made under sections 6 to 11 is empowered to institute a suit to establish his right in respect of the mortgage, subject to the result of the suit the order passed by the Collector shall be conclusive.
Article 14 of the Limitation Act, 1908 which is equivalent to article 100 of the , prescribes limitation of one year from the date of the decision or the order of the officer of the Government in his official capacity.
Article 61 of the present provides 30 years for redemption and recovery of the possession of the hypotheca.
The limitation of 30 years runs from the date when the right to redemption or possession accrues.
Articles 105, 134, and 145 of the Old would apply to the present litigation and the limitation is 60 years.
In Tulsi Dass @ Nirmal Das & Ors.
vs Diala Ram, (2) AIR 1943 Lah.
176 a Full Bench for which Tek Chand.
J. wrote the leading judgment held at page 189 thus: "The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie.
No suit under section 12 being necessary or comptetent, there was no bar to the mortgagor suing for redemption in the civil Courts within the period allowed by law in ordinary course.
It must, therefore, be held that the mortgagor 's suit in A.I.R. 1929 Lah.
513 was rightly decreed and that the contrary conclusion reached by the Single Bench in A.I.R. 1927 Lah.
461 and re affirmed by the Division Bench in A.I.R. that it is the form of the order of the Collector which has to be seen and not the substance of it, is erroneous.
This view was approved by this Court in Sheo Lal & Ors.
vs Sultan & Ors.
, ; by a Bench of three Judges.
The facts were that the Collector did not decide the dispute on merits, but rejected the application filed under Sec. 4 of the Act holding that the application raised complicated question of facts and law and thereby he declined to exercise summary jurisdiction under the Act.
On institution of the suit the plea of limitation under article 14 of Old was raised which was upheld by the Trial Court, but on 620 appeal the decree of redemption was granted and was confirmed by the High Court in Second Appeal.
The same contention was reiterated before this Court.
In that context Shah, J. as he then was, speaking for the court, held that it is not the form of the order of dismissal but its substance will determine the application of the period of limitation prescribed by article 14 of the .
An order relegating the mortgagor to a civil suit for obtaining an order of redemption, event if becomes final, does not bar a suit for redemption for it raises no cloud on the title of the mortgagor arising out of the mortgage.
Such an order is not one which is required to be set aside.
An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside.
It is clear that an order passed by the Collector under sections 6 to 11 is only conclusive for what was decided therein and if the adjudication made by the Collector in summary proceedings are sought to be reopened, certainly, unless the order is got over, either by the martgagor or by the mortgagee, or any person claiming right, title or interest through them being an aggrieved person within the meaning of Sec. 12, the order of the Collector binds the parties or the persons claiming right, title or interest from the parties.
Take for instance, there is a dispute as in the present case about the mortgage money before the Collector.
Kala Singh disputed the money secured of hypothecation but had compromised and agreed to pay the amount mentioned in the mortgages bond, namely, Rs.850 Rs.
10 in each of the mortages disputed but in the suit filed within one year he reiterated his original stand.
Had the same stand been taken by the respsondents disputing the mortgage money, certainly it would not be open to the respondents as successor in interest of the mortgagor to contend that the money advanced under the mortgage was not Rs. 850, but something less.
That is not the case in the present suit.
They agreed to pay Rs. 850 as decided by the Collector and sought redemption in the civil suit.
Thereby they are not seeking to set aside the order of the Collector, but they are seeking redemption of the mortage.
Take another instance where the mortgagor disputed the execution or validity of the mortgage, bond itself and the finding was recorded against the mortgagee, i.e. the mortgage bond was not either executed or is void for being vitiated by fraud, coercion or undue influence, etc.
The mortgagor successfully avoided the mortgage by a specific order passed by the Collector under the relevant provisions of the Act.
If no suit was filed within a period of one year, the findings of the Collector become conclusive between the mortgagee and the mortgagor and it is not open to assail the order of the Collector after one year in a suit of 621 foreclosure or sale by the mortgagee.
Therefore, what was prohibited by Sec.
12 is only the substance of the order and not the form.
Once a mortgage always a mortgage and gets extinguished by payment of mortgage money by the mortgagor or decree of redemption is passed and satisfied.
The creation of mortgage is an act intervivos and not a statutory or common law right.
The Act accords summary remedy and the default of compliance entails with dismissal of the application and section 13 prohibits second applications for the self same relief.
The remedy of civil suit for redemption available at common law, subject to limitation, is not taken away.
Civil suit is not a declaratory suit, but one to redeem the mortgage and to recover possession of mortgaged property.
The question then is whether the respondents are entitled to redemption of the mortgage.
Section 60 of the gives right to redemption of the mortgage by instituting a suit for redemption of the mortgage property.
But as seen, at the relevant time section 6D was not made applicable to Punjab.
In Mussammat Bhagwan Devi vs Mussammat Bunyadi Khanum, the Division Bench held that although the and the Indian Easement Act are not in force in Punjab, the Punjab Courts when deciding cases in which principles of law dealt with by the provisions of those Acts are involved, may adopt those provisions as embodying law applicable to the case especially when the law enunciated therein coincides with the principles of equity, good conscience and justice for which there is no statutory law applicable to the Punjab.
In that it was held that the mortgagor in possession had no authority, without the consent of the mortgagee, to do an act which was likely to prove destructive or permanently injurious to the property mortgaged.
In Safdar Ali.
vs Ghulam Mohi ud din & Ors., the Full Bench was to consider whether Doctrine of Clogging would apply when the was not made applicable to Punjab.
The Full Bench held that though the Doctrine of Clogging, in terms does not apply in Punjab, when there is no statutory prohibition, governing the matter be restricted to case where something unconscionable or oppressive in the bargain calls for redress.
In terms the Full Bench applied the Principles in the provisions of the consistent with the Doctrine of Justice, Equity and Good Conscience.
In Mian Nizam & Din Mohammad vs Lala Ram Sukh Das, the right of prior mortgagee purchasing property mortgaged to him be deemed to keep alive for his benefit as against subsequent mort 622 gagee.
It was held that the principles contained in section 101 of would be applicable and applied.
In Milkha Singh vs Mst.
Shankari & Ors., AIR (34) Lahore 1 a Full Bench of five Judges applied the Doctrine of Part Performance under section 53A of the as a defence.
It was further held that section 53A is based on equitable principles which were previously applicable to whole of India, though the per se was not applied to Punjab.
In M/s Ram Gopal Dula Singh vs Sardar Gurbux singh Jiwan Singh & Ors., Kapur, J., as he then was speaking for the Division Bench, held that though section 6 of the is not applicable to Punjab, the right to expectancy may not be transferred.
It was further held that in Punjab and Lahore there is no disagreement as to Principles of being applicable to Punjab because they are based on Justice, Equity and Good conscience.
This view was again reiterated in Atma Singh & Gian Singh vs Mangal Singh & Ors., I.L.R.1957 Jan. June (Vol.10) 79 and applied sections 58, 92 and 100, Doctrine of Subrogation, but excluded the applicability of the technical rules.
This Court in Ganeshi Lal vs Jyoti Pershad, held that though the does not apply to Punjab, the priciple of equity, justice and good conscience would apply to Punjab.
If one of the several mortgagor redeems the entire mortage by paying a sum less than the full amount due under the mortgage, he is entitled to receive from his co mortgagors only their proportionate shares on the amount actually paid by him.
He is not entitled to claim their proportionate shares on the amount which was due to the mortages under terms of the mortgage on the date of redemption.
The same principle laid down in Suryanarayan vs Sriramulu, [1913] 25 M.L.J. p. 16 was referred to with approval in Ganeshi Lal 's case.
Though in Ganeshi Lal 's case the entire claim under the suit for contribution was not decreed, the provision of were applied, on the Principles of equity, justice and good conscience and granted degree pro rata.
We hold that applying the principle of Justice, Equity and Good Conscience though section 60 of the per se did not apply, the principles in section 60 would apply.
Though the application for redemption was dismissed under s.11 of the Act and became conclusive under section 12 the mortgagor 's right to redemption is not barred.
A suit for redemption under section 60 of will be maintainable and civil court has jurisdiction to grant the decree of redemption.
In Gangu & Ors., vs Maharaj Das & Ors., I.L.R. 15 Lahore 380 a 623 Full Bench following Kaura vs Ram Chand Lah.
206 held that unless the order of the Collector be challenged within one year the civil court has no jurisdiction to entertain the suit.
In this case the right to redemption of mortgage itself was barred by limitation.
Therefore, the ratio does not apply.
Though the ratio in Bhagat Ram & Ors.
vs Jamna Ram & Ors. is in favour of the appellants, in our view the ratio therein is not good law.
Thus we hold that the suits for redemption are admittedly within limitation either under the Old Limitation or under the new .
The bar of Sec.
12 of the Act does not oust the jurisdiction of the civil Court to entertain and grant decree of redemption.
The appeals are accordingly dismissed, but in the circumstances parties are directed to bear their own costs throughout.
Y.L. Appeal dismissed.
|
Kala Singh predecessor of the respondents executed three mortgages hypothecating agricultural lands in favour of the appellants.
The mortgagor filed an application under Section 4 of the Redemption of Mortgages (Punjab) Act 2 of 1913 and sought redemption of the mortgages, by paying Rs.10 in respect of each of the mortgage.
The parties compromised regarding the amount payable and the Collector passed the order on compromise under Section 11 of the Act on Feb. 3, 1964.
The mortgagor having committed default in making the payment within the time allowed for the purpose, the petitions were dismissed by the Collector.
Thereupon the mortgagor filed three separate suits against each mortgagee for redemption within one year under Section 12 of the Act on June 12, 1964 and during the pendency of the suits, he having died the suits were dismissed.
The respondents after obtaining mutation of their names in the revenue records, filed separate suits for redemption of the mortgages but beyond one year as contemplated under section 12 read with Art.14 of the Limitation Act 1908.
The suits were dismissed by the trial court; which order was later affirmed both by the first appellate Court as also by the High Court.
On a further appeal under the Letter Patent Act, the Division Bench of the High Court allowed the appeals and set aside the judgments and Decrees of the courts below and granted decree of redemption holding that the suits were not barred by limitation.
The appellants have thus filed these appeals after obtaining special leave.
The appellants have reiterated their contention amongst others that the suits were barred by limitation and further the High Court was not right in applying the provisions of Section 60 of the Transfer of Property Act.
Dismissing the appeals this Court, 615 HELD: Section 13 creates a bar to make any further petition under the Act by the mortgagor or his successor in interest.
A reading of Section 12 clearly postulates that the aggrieved party, be it mortgagor or mortgagee, against an order made under sections 6 to 11 is empowered to institute a suit to establish his right in respect of the mortgage.
Subject to the result of the suit, the order passed by the Collector shall be conclusive.
Article 14 of the Limitation Act, 1908 which is equivalent to Article 100 of the , prescribes limitation of one year from the date of the decision or the order of the officer of the Government in his official capacity.
Article 61 of the present provides 30 years for redemption and recovery of the possession of the hypotheca.
The limitation of 30 years runs from the date when the right to redemption or posession accrues.
Articles 105, 134 and 145 of the old would apply to the present litigation and the limitation is 60 years.(619A C) The creation of mortgage is an act intervivos and not a statutory or common law right.
The Act accords summary remedy and the default of compliance entails with dismissal of the application and section 13 prohibits second application for the self same relief.
The remedy of civil suit for redemption available at common law, subject to limitation, is not taken away.
Civil suit is not a declaratory suit, but one to redeem the mortgage and to recover possession of mortgage property.
[621B C] In the instant case, applying the principle of Justice, Equity and Good conscience though section 60 of the Transfer of Property Act, per se, did not apply, the principles in section 60 would apply.
[622G] Though the application for redemption was dismissed under section 11 of the Act and and became conclusive under section 12, the mortgagor 's right to redemption is not barred.
A suit for redemption under section 60 of the Transfer of Property Act will be maintainable and civil court has jurisdiction to grant the decree of redemption.
[622G] The suits for redemption are admittedly within limitation either under the old Limitation or under the new .
The bar of section 12 of the Act does not oust the jurisdiction of the civil court to entertain and grant decree of redemption.
[623B] Raghunath Singh & Ors.
vs Mt. Hansraj Kanwar and Ors.
A.I.R. 1934 P.C. 205; Tulsi Dass @ Nirmal Das Ors., vs diala Ram AIR 1943. ; Sheo Lal & Ors.
vs Sultan and Ors.
; ; Mussammat Bhagwan Devi vs Mussammat Bunyadi Khanum ; Safdar Ali vs Ghulam Mohi ud din Ors., ; Mian Nizam & Din Mohammed vs Lala Ramsukh Das, ; Milkha Singh vs Mst.
Shankari & Ors., AIR (34) Lahore 1;Ms.
Ram Gopal Dula Singh vs Sardar Gurbux Singh Jiwan Singh and Ors., ; Atma Singh & Gian Singh vs Mangal Singh and Ors., ILR 1957 Jan. June (Vol. 10) 79; Ganesh Lal vs Jyoti Pershad, , Suryanarayan vs Sri ramulu, [1913] (25) M L.J.P.16; Referred to.
Gangu & Ors., vs Maharaj Das & Ors., ILR 15 Lahore 380; Kaura vs Ram Chand, , Lah.206 Distinguished.
Bhagat Ram & Ors.
vs Jamna Ram and Ors., [1928] 114 I.C. 447 Not approved.
|
N: Civil Appeal No. 135 of 1991.
From the Judgment and order dated 16.6.1989 of the Madras High Court Crl.
M.P. No. 2717 of 1988.
T.S. Krishnamoorthy Iyer, K. Rajeswara, N.D.B. Raju and K.R. Chaudhary for the Appellant.
K.K. Lahiri, R.K. Jain (NP), Sreekant, N. Terdal, Mrs. Sushma Suri and A Subba Rao for the Respondent.
The Judgment of the Court was delivered by 745 K.N.SAIKIA, J.
Special leave granted.
The appellant Captain Subhash Kumar was the Master of the Merchant ship M.V. Eamaco owned by Eamaco Shipping Co. (P) Ltd. Singapore, hereinafter called `the ship '.
On 12.8.86 the ship went into distress due to the vessel 's hold Nos. 2 & 3 taking in water, the pumping operations being insufficient and though initially the appellant sent radio message for help he failed to launch the life boats and life crafts and to abandon the ship to enable M.V. Shoun World to pick them up and due to the failure of motor life boats and life crafts, when the ship sank, only 11 out of 28 persons were rescued resulting in loss of life to the remaining persons.
At about 18.25 Hrs.
that day Madras Radio, which was the communication centre between the land and seafaring ships, informed the office of the Principal Officer, Mercantile Marine Department, Madras, District Madras, hereinafter called as `Principal Officer ', that an urgent message had been received by the said Radio from the appellant and from that communication it was clear that the ship under the command of the appellant was posted at position 11 degrees 08 minutes North, 83 degrees 41 minutes East on 12th at 11.30 Greenwich meantime.
The said message further indicated that the vessel 's hold Nos. 2 & 3 were taking in water and the pumping out operation was not sufficient and it called the assistance from all ships in the vicinity.
At 20.28 Hrs.
the Madras Radio again contacted the Principle officer and said that the Radio had received SOS message (distress message) and he took necessary steps.
The Principal Officer filed a complaint in court of 14th Metropolitan Magistrate, Egmore, Madras 8 against the appellant for initiation of an inquiry proceeding under section 363 of the (Central Act No.4 of 1958), hereinafter called `the Act, complaining about the negligence of the appellant while he was the Master of the ship as aforesaid; and that at that time he was residing at Laxmi Niwas, 41, Marshal Road, Egmore, Madras 8 and further stating that the shipping casualty had occurred due to sheer negligence and gross incompetence on the part of the appellant in commanding the ship and the crew; and that the very fact that the life boats and life floats were not used and not even lowered so as to make use of that indicated that the appellant had not even thought about that which a Captain of the ship should have done, resulting in loss of the ship, the cargo and valuable lives of the sailors who had at no time doubted about the competency of the Master or revolted against him.
The complaint accordingly said that the Magistrate 's Court by the provisions of section 363 had got powers to make inquiry into the charges of 746 incompetence or of misconduct of the appellant therein.
It also said that the inquiry be commenced in accordance with the provisions of the Act so as to cancel the certificates of competency of the Master, namely, the appellant, which had been granted by the Central Government; and that cancellation might be recommended under the Act after holding the aforesaid inquiry.
The complaint also said that the appellant rendered himself liable to be proceeded against under the provisions of part XII of the Act which envisaged various modes of investigation and inquiry; and under section 363 the court had powers to make an inquiry into the charges of incompetency or misconduct of the appellant.
On 25.3.1988, the appellant received a notice stating that the inquiry proceedings were instituted against him before the 14th Metropolitan Magistrate under section 363 of the Act.
The appellant thereupon filed Cr.
M.P. No.2717 of 1988 in the High Court under section 482 of the Cr.
P.C. stating that the proceedings were by an abuse of process of the court and the Court had no jurisdiction to proceed with the complaint against the appellant when there was no negligence on his part.
It was also stated that the fact that the appellant was a holder of a Master certificate issued by the Director General of Shipping, Calcutta would not attract the provisions of the Act inasmuch as the ship was a foreign ship and the Master certificate had been issued by a foreign country and the casualty had occurred in the high seas nearly 232 nautical miles away from India and being in open sea the ship was subject to the jurisdiction and also to the protection of the State under whose maritime flag it sailed.
The appellant was, it was further stated, to be in command of the ship by virtue of the certificate issued by the Panamanian Government, the flag of the ship was of Panama and, therefore, the provisions of the Act would not at all apply, much less its section 363.
In other words the proceedings were allegedly intended to harass the appellant without jurisdiction and it amounted to an abuse of process of court.
The learned Single Judge who heard the petition rejected the contention that in view of the language of section 2 of the Act it would not be applicable and that it would not be a shipping casualty as defined in section 358 of the Act, and held that the Act was applicable in the instant case and the action of the petitioner amounted to sheer negligence and called for investigation and inquiry under the Act.
Hence this appeal.
Mr. T. Krishnamurthy Iyer, the learned cousel for the appel 747 lant, submits, inter alia, that the negligence complained of having occurred in respect of foreign ship flying foreign flag at a place 232 nautical miles away from India, and as such, outside the territorial waters of India the Act would not be applicable; and that even if it was applicable it would not amount to a shipping casualty as envisaged in part XII of the Act; and lastly that even assuming that chapter XII applied, the complaint could not have been filed by the Principal Officer in the court of the 14th Metropolitan Magistrate, Egmore, Madras 8 under section 363 of the Act.
Mr. K. Lahiri, the learned counsel for the respondents submits that the shipping casualty having occurred within the territorial waters of India which extended up to 200 nautical miles, the Act would be applicable and the complaint was rightly filed under section 363 of the Act; and that the High Court under section 482 of the Code of Criminal Procedure rightly refused to quash the proceedings.
Three questions, therefore, are to be decided in this appeal.
First, whether the Act would at all be applicable in the facts and circumstances of the case; secondly, if the Act was applicable whether part XII of the Act would apply; and thirdly, if both the Act and part XII were applicable whether the complaint made by the Principal Officer under section 363 of the Act would be maintainable.
Taking the first question first, the Act is one to foster the development and ensure the efficient maintenance of India Mercantile Marine in the manner best suited to serve the national interest and for that purpose to establish a National Shipping Board and Shipping National Fund to provide for registration of India ship and the law relating to Merchant shipping.
Section 2 of the Act deals with its application and says; "(1) Unless otherwise expressly provided, the provisions of this Act which apply to (a) any vessel which is registered in India; or (b) any vessel which is required by this Act to be so registered; or (c) any other vessel which is owned wholly by persons to each of whom any of the descriptions specified in clause (a) or in clause (b) or in clause (c), as the case may be, of 748 section 21 applies, shall so apply wherever the vessel may be.
(2) Unless otherwise expressly provided, the provisions of this Act which apply to vessels other than those referred to in sub section (1) shall so apply only while any such vessel is within India, including the territorial waters thereof." In the instant case the ship was not registered in India and was not required by this Act to be so registered.
Clause (c) refers so clauses (a), (b) and (c) of section 21 which defines Indian ships, and says: "For the purposes of this Act, a ship shall not be deemed to be an Indian ship unless owned wholly by persons to each to whom any of the following descriptions applies: (a) a citizen of India; or (b) a company which satisfies the following requirements, namely: (i) the principal place of business of the company is in India; (ii) at least seventy five per cent of the share capital of the company is held by citizens of India: Provided that the Central Government may, by notification in the official Gazette, alter such minimum percentage, and where the minimum percentage is so altered, the altered percentage shall, as from the date of the notification, be deemed to be substituted for the percentage specified in this sub clause; (iii) not less than three fourths of the total number of directors of the company are citizens of India; (iv) the chairmen of the board of directions and the managing director, if any, of the company are citizens of India; (v) the managing agents, if any, of the company are citizens of India or in any case where a company is the managing agent, the company satisfies the requirements specified in sub cls.
(i), (ii), (iii) and (iv).
or 749 (c) a co operative society which satisfies the following requirements, namely: (i) the co operative society is registered or deemed to be registered under the , or any other law relating to co operative societies for the time being in force in any State, (ii) every individual who is a member of the co operative society and where any other co operative society is a member thereof, every individual who is a member of such other co operative society, is a citizen of India.
" The ship was not a ship owned wholly by persons each of whom was a citizen of India or by a company satisfying the descriptions under clause (b) or (c).
Sub section (2) of section 2 makes the provisions of the Act applicable to vessels other than those referred to in sub section (1) only while any such vessel is within India, including the territorial waters thereof.
The ship a Panamanian ship registered in Panama would come within the purview of the Act only it is within India including the territorial waters.
This leads us to the question as to the extent of territorial waters of India.
The Territorial Waters, Continental shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (Act No. 80 of 1976) is an Act to provide for certain matters relating to the territorial waters continental shelf, exclusive economic zone, and other maritime zones of India.
Section 2 of the Act defines "limit" in relation to the territorial waters, the continental shelf, the exclusive economic zone or any other maritime zones of India to mean the limit of such waters shelf or zone with reference to the mainland of India as well as the individual or composite group or groups of islands constituting part of the territory of India.
Section 3 deals with sovereignty over, and limits of, territorial waters and says: "(1) The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over such waters.
(2) The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline.
750 (3) Notwithstanding anything contained in sub section (2), the Central Government may whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the territorial waters.
(4) No notification shall be issued under sub section (3) unless resolutions approving the issue of such notification are passed by both Houses of Parliament." Thus sub section (2) clearly provides that the limit of the territorial waters is a line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate baseline.
Under Article 297 of the Constitution of India things of value within territorial waters or continental shelf and resources of the exclusive economic zone to vest in the Union.
It says: "(1) All lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union and be held for the purposes of the Union.
(2) All other resources of the exclusive economic zone of India shall also vest in the Union and be held for the purposes of the Union.
(3) The limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime zone, of India shall be such as may be specified, from time to time, by or under any law made by Parliament.
" Sub section (3), thus, empowers the Central Government if it considers necessary so to do having regard to the International Law and State practice, alter, by notification in the Official Gazette, the limit of territorial waters.
Under sub section (4) no such notification shall be issued unless resolutions approving the issue of such notification are passed by both Houses of Parliament.
A proclamation was made by the President of India published on September 30, 1967 in the Gazette of India Extraordinary, Part III, section 2 Notification of the Government of India in the Ministry of External Affairs No. FL/III (1) 67.
By a Notification of the Government of India dated 15th 751 January, 1977 the exclusive economic zone of India has been extended upto a distance of 200 nautical miles into the sea from shore and other maritime zones, 1976 under the 40th Constitution Amendment Act, 1976.
The concepts of territorial waters, continental shelf and exclusive economic zone are different concepts and the proclamation of exclusive economic zone to the limit of 200 nautical miles into the sea from the shore baseline would in no way extend the limit of territorial waters which extends to 12 nautical miles measured from the appropriate baseline.
The submission that territorial waters extends to the limit of 200 nautical miles by virtue of the notification extending exclusive economic zone to 200 nautical miles has, therefore, to be rejected.
Admittedly the ship (M.V.Eamaco) at the time of the casualty was at a place beyond the territorial waters of India and even the exclusive economic zone of India.
If this be the position, the ship would not be covered by the provisions of section 2 of the Act and consequently the provisions of the Act would not apply to the instant casualty.
Taking the second question it is obvious that the Act itself having not been applicable Chapter XII being a part of the Act will also not be applicable.
This Chapter deals with investigations and inquiries and contain sections 357 to 389.
Section 357 defines "coasts" to include the coasts of creeks and tidal rivers.
Section 358 deals with shipping casualties and report thereof and says: "(1) For the purpose of investigations and inquiries under this Part, a shipping casualty shall be deemed to occur when (a) on or near the coasts of India, any ship is lost, abandoned, stranded or materially damaged; (b) on or near the coasts of India, any ship causes loss of material damage to any other ship; (c) any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coasts of India; (d) in any place, any such loss, abandonment, stranding, material damage or casualty as above mentioned occurs to or on board any India ship and any competent witness thereof is found in India; 752 (e) any Indian ship is lost or is supposed to have been lost and any evidence is obtainable in India as to the circumstances under which she proceeded to sea or was last heard of.
(2) In the cases mentioned in clauses (a), (b) and (c) of sub section (1), the master, pilot, harbour master or other person in charge of the ship, or (where two ships are concerned) in charge of each ship at the time of the shipping casualty, and in the cases mentioned in clause (d) of sub section (1), where the master of the ship concerned or (except in the case of a loss) where the ship concerned proceeds to any place in India from the place where the shipping casualty has occurred, the master of the ship, shall, on arriving in India, give immediate notice of the shipping casualty to the officer appointed in this behalf by the Central Government.
" Clause (d) envisages shipping casualty in any place but occurring to or on board any Indian ship whether the Master of the ship concerned (except in the case of a loss) where the ship concerned proceeds to any place in India from the place where the shipping casualty of the ship has occurred, the Master of the ship.
Thus this provision will not cover the ship.
The conclusion, therefore, is inescapable that the casualty in the instant case would not be a shipping casualty envisaged in section 358.
Subsequent sections, namely, 359, 360, 361 and 362, relate to shipping casualties as envisaged in section 358.
The impugned complaint was ex facie made under section 363 of the Act which deals with power of Central Government to direct inquiry into the charges of incompetency or misconduct, it says: "(1) If the Central Government has reason to believe that there are grounds for charging any master, mate or engineer with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, the Central Government.
(a) if the master, mate or engineer holds a certificate under this Act, in any case; 753 (b) if the master, mate or engineer holds a certificate under the law of any country outside India, in any case where the incompetency or misconduct has occurred on board an Indian ship; may transmit a statement of the case of any court having jurisdiction under section 361 which is at or nearest to the place where it may be convenient for the parties and witnesses to attend, and may direct that court to make an inquiry into that charge.
(2) Before commencing the inquiry, the court shall cause the master, mate or engineer so charged to be furnished with a copy of the statement transmitted by the Central Government.
" From the above provisions it appears that section 359 envisages the officers referred to in sub section (2) of section 358.
Receiving the information that a shipping casualty has occurred and reporting in writing the information to the Central Government and his proceeding to make a preliminary inquiry into the casualty and sending a report thereof to the Central Government or such other authority as may be appointed by it in that behalf.
Under section 360 the officer, whether he has made a preliminary inquiry or not, may, and, where the Central Government so directs, shall make an application to the court empowered under section 361 requesting it to make a formal investigation into any shipping casualty and the court shall thereupon make such investigation.
Thus the officer himself may or when directed by the Central Government shall make an application to the court requesting it to make a formal investigation into any shipping casualty.
Section 361 empowers the court to make a formal investigation under Part XII.
A Judicial Magistrate of the first class specially empowered in this behalf by the Central Government and a Metropolitan Magistrate shall have jurisdiction to make formal investigation into any shipping casualty under Part XII.
What has to be noted in this section is that the court on an application of the officer makes a formal investigation into shipping casualties and not a preliminary inquiry which could have been done by the officer referred to in sub section (2) of section 358, and under section 359 send a report to the Central Government.
Section 360 also envisages making of application to court by the officer whether he had made preliminary inquiry or not, requesting it to make formal investigation into any shipping casualty.
Thus under section 361 what is being envisaged is a formal investigation into a shipping 754 casualty and not a preliminary inquiry.
Section 362 deals with only formal investigation and says that while making such investigation into a shipping casualty the court may inquire, into any charge of incompetency or misconduct arising, in the course of the investigation, against any master, mate or engineer, as well as into any charge of a wrongful act or default on his part causing the shipping casualty.
Under sub section (2) a statement of the case has to be furnished to the Master, mate or Engineer.
Section 362 does not envisage inquiring into any charge of incompetency or misconduct otherwise than in the course of the formal investigation into a shipping casualty, Section 363 (1) envisages the Central Government, when it has reason to believe that there are grounds for charging any master, mate or engineer with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, (b) if he holds a certificate under the law or any country outside India, in any case where the incompetency or misconduct has occurred on board an Indian ship, and the transmitting of the statement of the case to any court having jurisdiction under section 361 where it may be convenient for the parties and witnesses to attend, and the Central Government may direct that court to make an inquiry into that charge.
Under clause (a) the Central Government may exercise the power if the Master, mate or Engineer holds a certificate under the Act, in any case.
Thus under this section the Central Government must have reason to believe that there are grounds for charging any master etc.
with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, in case of a master of a foreign ship who holds a certificate under the Act "in any case".
It also envisages the transmitting the statement of the case to any court having a jurisdiction under section 361.
The question is what would be the meaning of the words "in any case".
Would it mean any case of shipping casualty, or it would mean any case irrespective of shipping casualty.
In other words, under the above provisions if the appellant was the master of the ship and the casualty was outside the territorial waters of India and the ship involved was a foreign ship would the expression "in any case" cover the instanct case? If the preceding sections of Part XII dealt with only Shipping casualty, will it be permissible to interpret the words "in any case" irrespective of shipping casualty and anywhere outside the territorial waters of India and whoever is the owner of the Vessel? Will not the ejusdem generis rule apply? Again when the Act itself is not applicable to a case, can these words be given a meaning beyond the applicability of the Act? Verba secundum materiam subjectam intelligi nemo est qui nesciat.
There is no one who does not know that words are to be understood according to their subject matter.
The subject matter of 755 Part XII is investigations and inquiries into shipping casualty.
Would 'in any case" then mean in any case of shipping casualty? We have read the other relevant provisions of the Act.
Nemo aliquam partem recti intelligere potest, antequam totum interum atque itrerum parlegerit.
No one can properly understand any part of a statute till he had read through the whole again and again.
We find that Part VI of the Act deals with certificates of officers, namely, Masters, mates and Engineers, Section 76(1) provides: "Every foreign going Indian ship, every home trade Indian ship of two hundred tons gross or more when going to sea from any port or place in India and every ship carrying passengers between ports or places in India shall be provided with officers duly certificated under this Act according to the following scale, namely: (a) in every case, with a duly certificated master; (b) if the ship is a foreign going ship or a home trade passenger ship of one hundred and fifty tons gross or more, with at least one officer besides the master holding a certificate not lower than that of first mate in the case of a foreign going ship and of mate in the case of a home trade passenger ship; (c) if the ship is a home trade ship, not being a passenger ship, of four hundred and fifty tons gross or more, with at least one officer besides the master holding a certificate not lower than that of mate.
(d) if the ship is a foreign going ship and carries more than one mate, then with the second mate duly certificated.
" Section 79 deals with examination for, and grant of, certificate.
Section 82 provides that a note of all orders made for canceling, suspending, altering or otherwise affecting any certificate of competency, in pursuance of the powers contained in this Act, shall be entered on the copy of the certificate kept under section 81.
Section 87 empowers the Central Government to make rules, inter alia, to (f) prescribe the circumstances or cases if which certificates of competency may be canceled or suspended.
Section 363 of the Act does not refer to Part VI and the rules for 756 suspension or cancellation of certificates.
This would be consistent with the view that section 363 confines itself to cases of misconduct or incompetency associated with a shipping casualty.
Assuming that it covers a case of a foreign ship on high seas, it would only be to make an inquiry into that charge and not into the shipping casualty itself.
The question then arises, as has been submitted by Mr. Krishnamurthy Iyer, when the entire Act is not applicable to there instant casualty would it be consistent with the extent of applicability of the Act to pick up three words, namely, "in any case" and apply it to the prejudice of the appellant.
Mr Lahiri submits that the certificate of competency issued under the Act by the appropriate authorities under part VI are valuable certificates and if the holder of such a certificate of competency issued under the provisions of Part VI is alleged to have committed misconduct or acts of incompetency there is no reason why an inquiry into that misconduct or incompetency cannot be ordered by the Central Government to a court competent to exercise jurisdiction under section 361 of the Act.
Section 363 does not envisage the court acting on a statement transmitted by the Central Government to conduct a formal investigation into the shipping casualty but only the courts ' making an inquiry into the charge of incompetency or misconduct.
Section 364 provides giving of opportunity to the person to make defence.
Section 365 empowers the court to regulate its proceedings.
Section 369 provides that the court shall, in the case of all investigations or inquiries under this Part, transmit to the Central Government a full report or its conclusions which it has arrived at together with the evidence.
Under sub section (2) of that section where the investigation or inquiry affects master or an officer of a ship other than an Indian ship who holds a certificate under the law of any country outside India, the Central Government may tansmit a copy of the report together with the evidence to the proper authority in that country.
Section 370 deals with power of court as to certificates granted by Central Government.
A certificate can be canceled or suspended under clause (a) by a court holding formal investigation and under clause (v) by a court holding inquiry under this part into the conduct of the master, mate or engineer if the court finds that he is incompetent or has been guilty of any gross act of drunkenness, tyranny or other misconduct or in a case of collision has failed to render such assistance or gave such information as is required by section 348.
Under sub section (3), where the court 757 cancels or suspends a certificate, the court shall forward it to the Central Government together with the report which it is required by this Part to transmit to it.
Thus, this section deals with power of the court while holding a formal investigation into a shipping casualty under clause (a) and while holding an inquiry into the conduct of the master, mate or engineer i.e. otherwise than while holding a formal investigation into shipping casualty.
If the expression "In any case" is interpreted to cover a foreign ship by a foreign master but holding an Indian certificate having a shipping casualty outside the territorial water sections 363 and 370b) may be applicable.
If on the other hand the words "in any case" is not allowed to be interpreted to include such a master of such a ship and in such a casualty it may not be covered.
The question then is whether the instant complaint can be construed as a statement of the Central Government as envisaged in section 363.
One of the requisites of section 363 is that the Central Government must have reason to believe that there are grounds for charging any master etc.
with incompetency or misconduct; and such reason to believe must have been arrived at otherwise than in the course of a formal investigation into the shipping casualty and it is the Central Government who why transmit the statement of a case to a court having jurisdiction under section 361.
We have to examine whether the complaint is ex facie under section 363.
It nowhere mentions that the Central Government had such reason to believe.
It nowhere mentions that it was a transmission of the statement of a case to the court by the Central Government.
It also nowhere mentions that reason to believe had been found otherwise than in the course of a formal investigation into the shipping casualty.
On the other hand in para 2 it says that the complainant is the Principal Officer who is competent person appointed under the Act to complain about the negligence of the accused.
There is no doubt that he is not empowered under section 363.
In para 6 the complaint says that the court under section 363 has got powers to make an inquiry into the charges of incompetency or misconduct of the accused and para 8 mentions: "The inquiry so as to cancel the certificate of the competency of the master namely the accused which has been granted by the Central Government may be recommended under this Act after holding the above said inquiry and thus render justice." Therefore, prima facie the complaint does not disclose the ingredients required under section 363.
We enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the 758 answer is in the negative.
We feel that had such interpretation been given earlier the Act being an old one of 1958, some instances ought to have been available.
However, the instant appeal is from an order of the High Court refusing to quash the complaint and the proceedings.
Quashing of the complaint could have been done, if taken on its face value it failed to disclose any ingredient of the offence.
The High Court found as fact that the appellant had two certificates issued under section 78 of the Act from the Director General of Shipping, Calcutta and Bombay respectively.
The High Court correctly observed that section 363 enables the Central Government to transmit a case to the court which has jurisdiction under section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigation into shipping casualties but the High Court failed to notice that the complainant himself had no power under section 363.
High Court has not considered the extent of applicability of the Act and whether all ingredients required under section 363 were satisfied in the impugned complaint.
We accordingly set aside the Judgment of the High Court, quash the complaint and the proceedings before the 14th Metropolitan Magistrate, Egmore, Madras 8, but make it clear the it shall still be open for the Central Government to act under section 363 of the Act according to law if it so decides.
Appeal allowed.
R.S.S. Appeal allowed.
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The appellant was the Master of the Merchant ship, M.V. Eamaco, when it sank in the high seas nearly 232 nautical miles away from India.
The appellant was holder of a Master 's certificate issued by the Director General of Shipping, Calcutta.
The ship was owned by a Singapore company and was flying Panamian flag.
The first respondent filed a complaint in the Court of 14th Metropolitan Magistrate, Egmore, Madras against the appellant for initiation of enquiry proceedings under section 363 of the Merchant Shiping Act, 1958 complaining about the negligence of the appellant while he was the Master of the ship and further stating that the shipping casualty had occurred due to sheer negligence and gross in competence of the Master when he failed to launch the life boats and life crafts which resulted in loss of the ship, the cargo and valuable lives of sailors.
The appellant filed a Criminal Miscellaneous Petition in the High Court under section 482 of the Cr.
P.C. stating that the proceedings were by an abuse of process of the court and the Court had no jurisdiction to proceed with the complaint against the appellant when there was no negligence on his part.
The High Court rejected the petition and held that the Shipping Act was applicable to the instant case and the action of the petitioner amounted to sheer negligence and called for investigation and inquiry under the Act.
The appellant has appealed to this Court.
In this court it was inter alia contended on behalf of the appellant that (i) the negligence complained of having occurred in respect of a foreign ship, flying foreign flag, at a place 232 natuical miles away from India, and as such, outside the territorial waters of India, the Act was 743 not applicable; (ii) even if the Act was applicable it would not amount to a shipping casualty as envisaged in part XII of the Act; and (iii) even assuming that Chapter XII applied the complaint could not have been filed by the appellant in the court of the 14th Metropolitan Magistrate, Egmore under Section 363 of the Act.
On behalf of the respondent it was contended that the shipping casualty having occurred within the territorial waters of India which extended up to 200 nautical miles, the Act would be applicable.
It was further submitted that the certificate of competentence issued under the provisions of Part VI of the Act was a valuable certificate and if the holder of such a certificate of competency was alleged to have committed misconduct or acts of incompetency there was no reason why an inquiry into that misconduct or incompetency could not be orderd by the Central Government to a court competent to exercise jurisdiction under section 361 of the Act.
Allowing the appeal, setting aside the judgment of the High Court, and quashing the complaint and the proceedings against the appellants, this Court.
HELD: (1) The ship was not a ship owned wholly by persons each of whom was a citizen of India or by a company satisfying the description under clause (b) or (c) of sub section (2) of Section 2 of the Act.
The ship being a Panamanian ship registered in Panama would come within the purview of the Act only while it was within India including its territorial waters.
[749C D] (2) By a notification of the Government of India dated 15th January, 1977 the exclusive economic zone of India had been extended upto a distance of 200 nautical miles into the sea from the shore and other maritime zones, under the 40th Constitution Amendement Act, 1976.
[750H 751A] (3) The concepts of territorial waters, continental shelf and exclusive economic zone are different concepts and the proclamation of exclusive economic zone to the limit of 200 nautical miles into the sea from the shore baseline would in no way extend the limit of territorial waters which extends to 12 nautical miles measured from the appropriate baseline.
[751B] (4) Admittedly the ship at the time of the casualty was at a place beyond the territorial waters of India and even the exclusive economic zone of India.
If this be the position, the ship would not be covered by the provisions of section 2 of the Act and consequently the provisions of 744 the Act would not apply to the instant casualty.
[751C] (5) The Act itself having not been applicable, Chapter XII being a part of the Act will also not be applicable.
[751D] (6) What is envisaged under section 361 is a formal investigation into a shiping casualty and not a preliminary inquiry.
Similarly section 262 does not envisage inquiring into any charge of incompetency or misconduct otherwise than in the course of the formal investigation into a shipping casualty.
[753H 754B] (7) Prima facie, the complaint does not disclose the ingredients required under section 363 of the Act.
It nowhere mentions that it was a transmission of the statement of a case to the court by the Central Government; it also nowhere mentions that the reason to believe had been founded otherwise than in the course of a formal investigation into the shipping casualty.
On the other hand in para 2 it says that the complainant is the Principal Officer who is competent person appointed under the Act to complain about the negligence of the accused.
There is however no doubt that he is not so empowered under section 363.
[757G,E F] (8) The High Court correctly observed that section 363 enabled the Central Government to transmit a case to the court which had jurisdiction under section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigation into shipping casualties, but the High Court failed to notice that the complainant himself had no power under section 363.
[758C D]
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Civil Appeal No. 570 of 1976.
Appeal by Certificate from the Judgment and Order dated 9.2.1976 of the Madras High Court in Tax Case No. 104 of 1969.
T.A. Ramachandran, P.N. Ramaligam and A.T.M. Sampath for the Appellant.
628 V.Gauri Shanker, Manoj Arora, section Rajappa and Ms.
A.Subhashini for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
This is the assessee 's appeal form a judgment of the Madras High Court dated 10.1.1975 answering three questions referred to it by the Income tax Appellate Tribunal in favour of the Revenue and against the assessee.
The reference related to the assessment year 1961 62, the previous year in respect of which commenced on 13.4.1960.
The judgment of the High Court is reported as (1976) 102 I.T.R.622.
The appellant assessee is a partnership firm.
Since 1949, it was carrying on, in Malaya, a money lending business and, as part of and incidental to the said business, a business in the purchase and sale of house properties, gardens and estates.
It had been reconstituted under a deed dated 26.3.1960.
The firm 's accounts for the year 1960 61, which commenced on 13.4.60, would normally have come to a close on or about the 13th April, 1961.
However, the firm closed its accounts as on 13.3.1961 with effect from which date it was dissolved.
Along with its income tax return for the assessment year 1961 62 filed on 10th April 1962, the assessee filed a profit and loss account and certain other statements.
In the profit and loss account, a sum of $ 1,01,248 was shown as "difference on revaluation of estates, gardens and house properties" on the dissolution of the firm on 13.3.61, such difference being $ 70,500 in respect of "house properties" and $ 30,748 in respect of estates and gardens.
In the memo of adjustment for income tax purposes, however, the above sum was deducted on the ground that it was not assessable either as revenue or capital.
A statement was also made before the officer that partner Ramanathan Chettiar, forming one group and the other partners forming another group, were carrying on business separately with the assets and liabilities that fell to their shares on the dissolution of the firm.
The Income tax Officer (I.T.O.) issued a notice under section 23(2) on the same day (10.4.1962) posting the hearing for the same day and completed the assessment also on the same day, after making a petty addition of Rs. 2083 paid as property tax in Malaya, and recording the following note: "Audit assessment Lakshmanan appears return filed I.T. 86 acknowledged in list of books scrutinised order dictated".
629 For the subsequent assessment year 1962 63, the assessee filed a return showing nil income along with a letter pointing out that the firm had been dissolved on 13.3.1961.
Thereafter, on 3.9.63, the I.T.O. wrote a letter to the assessee to the effect that the revaluation difference of $ 1,01,248 should have been brought to tax in the assessment year 1961 62 in view of the decision of the Madras High Court in Ramachari & Co. vs C.I.T., He called for the basis for the valuation and also for the assessee 's objections.
The assessee sent a reply stating that no profit or loss could be assessed on a revaluation of assets.
Relying on a circular of the Central Board of Revenue dated 21.6.1956, it was urged that the assessee was gradually winding up its business in Malaya and that therefore, the surplus would only be capital gains.
It was urged that the revaluation had been at a market price prevalent since 1.1.1954 and that, therefore, no capital gains were chargeable to tax.
The I.T.O. followed up his letter by a notice under section 148 read with section 147(b).
The assessee objected to the reassessment on two grounds: (1) that the circumstances did not justify the initiation of proceedings under section 147(b); and (2) that no assessable profits arose to the firm on the revaluation of assets on the eve of the dissolution of the firm.
Overruling these objections, the I.T.O. completed a reassessment on the firm after adding back the sum of Rs.1,58,057 (the equivalent of $ 1,01,248) to the previously assessed income.
The assessee 's successive appeals to the Appellate Assistant Commissioner and the Appellate Tribunal and reference, at its instance, to the High Court having failed,the assessee is before us.
Three questions of law were referred to the High Court by the Tribunal.
These were: "1.
Whether, on the facts and circumstances of the case, the reassessment made on the assessee firm for the assessment year 1961 62 under section 147 of the Income tax Act is valid in Law? 2.
Whether, on the facts and circumstances of the case, assessment of the sum of $ 1,01,248 as revenue profit of the assessee firm chargeable to tax for the assessment year 1961 62 is justified in law? 3.
Whether, on the facts, and circumstances of the case, the Appellate Tribunal is right in law in sustaining the assessment of the sum of $ 1,01,348 after having found that the Department Officers are bound by the Circular of the Central Board of Revenue?" 630 We may deal at the outset with the third question.
Though the High Court has dealt with this question at some length, we do not think any answer to this question can or need be furnished by us for the following reasons.
First, the assessee has not been able to place before us the circular of the Board on which reliance is placed.
It is not clear whether it is a circular or a communication of some other nature.
Second, the circular, to judge from its purport set out in the High Court 's judgment, seems to have been to the effect that the surplus arising from the sale of properties acquired by a money lender in the course of his business would be in the nature of capital gains and not of income.
Obviously such a proposition could not have been intended as a broad or general proposition of law, for the nature of the surplus on sale of assets would depend on the nature of the asset sold and this, in turn, would depend on the facts and circumstances of each case.
In this case, no material was placed at any stage to show that the assets in question constituted the capital assets of the firm and not its stock in trade.
Third, the plea of the assessee which was in issue all through was that there was no sale of assets by the firm when its assets are distributed among its partners and that no profits whether capital or revenue could be said to arise to the firm merely because, at the time of the dissolution, the firm revalued its assets on the basis of market value or any other basis, for adjusting the mutual rights and liabilities of the partners on the dissolution of the firm.
The terms of the circular, as set out in the order of the High Court, cannot therefore be of any assistance to the assessee in answering the issues in this case.
We, therefore, do not answer the third question posed by the Tribunal.
Turning now to the first question, the relevant facts have already been noticed.
The following relevant and material facts viz. (i) the dissolution of the firm, (ii) the revaluation of its assets, (iii) the distribution thereof among two groups of its partners, and (iv) the division and crediting of the surplus on revaluation to the partner 's accounts were not only reflected in the balance sheet, the profit and loss account and the profit and loss adjustment account but were also mentioned in the statement filed before the I.T.O. along with the return.
Clearly, action u/s 148 read with clause (a) of s.147 could not be initiated in these circumstances but is action under clause (b) of that section also impermissible? That is the question.
We may now set out the provisions of clause (b) of section 147 for purposes of easy reference.
This clause which corresponds to section 34(1)(b) of the Indian Income tax Act, 1922 (`the 1922 Act ') permits initiation of reassessment of proceedings, "notwithstanding 631 that there has been no omission or failure as mentioned in clause (a) on the part of the assessee" provided "the Income tax Officer has, in consequence of information in his possession, reason to believe that income chargeable to tax has escaped assessment".
In the present case, on the information already on record and in view of the decision in Ramachari & Co. vs C.I.T., , there can be no doubt that the I.T.O. could reasonably come to the conclusion that income, profits and gains assessable for the assessment year 1961 62 had escaped assessment.
But is that belief reached "in consequence of information in his posession"? The assessee 's counsel says "no", for, says he, it is settled law that the "information" referred to in clause (b) above, should be "information" received by the I.T.O. after he had completed the original assessment.
Here it is pointed out that all the relevant facts as well as the decision in Ramachari (supra) had been available when the original assessment was completed on 10.4.1962.
Action cannot be taken under this clause merely because the I.T.O., who originally considered the surplus to be not assessable, has on the same facts and the same case law which had been available to him when he completed the assessment originally, changed his opinion and now thinks that the surplus should have been charged to tax.
The validity of the assessee 's argument has to be tested in the light of the decisions of this Court which have interpreted section 147(b) of the 1961 Act or its predecessor section 34(1)(b) of the 1922 Act and expounded its parameters.
We may start with the decision in Maharaj Kumar Kamal Singh vs I.T.O., S.C.
In this case it was held that the word "information" would include information as to the true and correct state of the law and would also cover information as to relevant judicial decisions.
In that case the I.T.O. had re opened the assessment on the basis of a subsequent decision of the Privy Council and this was upheld.
Referring to the use of the word "escape" in the section, the Court observed.
"In our opinion, even in a case where a return has been submitted, if the income tax Officer erroneously fails to tax a part of asessable income, it is a case where the said part of the income has escaped assessment.
The appellant 's attempt to put a very narrow and artificial limitation on the meaning of the word "escape" in section 34(1)(b) cannot, therefore, succeed." (underlining ours) 632 The meaning of the word "information" was again explained thus in C.I.T. vs A. Raman & Co., [1968] 67 I.T.R. 11 SC: "The expression `information ' in the context in which it occurs must, in our judgment, mean instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment. .
Jurisdiction of the Income tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment.
That information, must, it is true, have come into the possession of the Income tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income tax Officer is not affected." (underlining ours) We may next refer to Kalyanji Mavji & Co. vs C.I.T., [1976 102] I.T.R. 287.
It is unnecessary to set out the facts of this case.
It is sufficient to refer to the enunciation of the law regarding the scope of section 34(1)(b) as culled out from the earlier decisions of this Court on the subject.
At page 296 the Court observed: "On a combined review of the decisions of this Court the following tests and principles would apply to determine the applicability of section 34(1)(b) to the following categories of cases: (1) where the information is as to the true and correct state of the law derived from relevant judicial decisions; (2) where in the original assessment the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income tax Officer.
This is obviously based on the principle that the taxpayer would not be allowed to take advantage of an oversight or mistake committed by the taxing authority; 633 (3) where the information is derived from an external source of any kind.
Such external source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of the original assessment; (4) where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law." Before applying the above principles to the facts of the present case, we may refer to two earlier decisions of the Madras High Court which have been followed in the judgment under appeal.
In Salem Provident Fund Society Ltd. vs C.I.T., , the Income tax officer, in calculating the annual profits of an insurance company, had, under the statute to work out the difference between the deficiencies as shown in the actuarial valuation of the company in respect of two successive valuation periods.
At the time of original assessment, the Income tax Officer, by mistake, added the two deficiencies instead of subtracting one from the another.
This mistake he committed not in one assessment year but in two assessment years.
Subsequently, he discovered his mistake and initiated proceedings under section 34(1)(b).
The contention urged on behalf of the assessee was that all the statements, on the basis of which the re assessment proceedings were taken, were already on record and that, in such a case, there was no `information ' which would justify the reassessment.
An argument was also raised that the rectification, if any, could have been carried out only under section 35 and not under section 34.
These contentions were repelled.
In regard to the former objection, the High Court pointed out: "We are unable to accept the extreme proposition that nothing that can be found in the record of the assessment, which itself would show escape of assessment or under assessment, can be viewed as information which led to the belief that there has been escape from assessment or under assessment.
Suppose a mistake in the original order of assessment is not discovered by the Income tax Officer himself on further scrutiny but it is brought to this notice by another assessee or even by a subordinate or a superior officer, that would appear to be information disclosed to the Income tax Officer.
if the mistake itself is not extraneous 634 to the record and the informant gathered the information from the record, the immediate source of information to the Income tax Officer in such circumstances is in one sense extraneous to the record.
It is difficult to accept the position that while what is seen by another in the record is `information ' what is seen by the Income tax Officer himself is not information to him.
In the latter case he just informs himself.
It will be information in his possession within the meaning of section 34.
In such cases of obvious mistakes apparent on the face of the record of assessment that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under assessment.
A similar question arose in CIT vs Rathinasabapathy Mudaliar, In that case the assessee, who was a partner in a firm, did not include in his return the income of his minor son admitted to the benefits of the partnership as required by section 16(3) of the 1922 Act.
The minor son submitted a separate return and was assessed on this income.
Subsequently, the Income tax Officer "discovered" his error in not assessing the father thereon and started re assessment proceedings.
The re assessment was upheld by the Madras High Court on the same logic as had been applied in Salem Provident Fund Society Ltd. case (supra).
The above line of thinking has not only held the field for about thirty years now but has also received approval in Anandji Haridas and Co. (P) Ltd. vs S.P. Kushare, Sales Tax Officer, [1968] 21 S.T.C. 326.
This issue has further been considered in the decision of this Court in the case of Indian and Eastern Newspaper Society vs C.I.T. (the IENS case, for short) [1979] I.T.R. 996.
In this case the income of the assessee derived by letting out certain portions of the building owned by it to its members as well as to outsiders was being assessed as business income.
In the course of audit, an internal audit party expressed the view that the money realised by the assessee on account of the occupation of its conference hall and rooms should have been assessed under the head "income from property" and not as business income.
The Income tax Officer thereupon initiated re assessment proceedings and this was upheld by the Tribunal.
On a direct reference under s.257 of the Act, this Court held that the opinion of the audit party on a point of law could not be regarded as "information" and that the initiation of the reassessment proceedings was not justified.
It was contended for the Revenue, that the reassessment proceedings would 635 be valid even on this premise.
Dealing with this argument, the Court observed: "Now, in the case before us, the ITO had, when he made the original assessment, considered the provisions of sections 9 and 10.
Any different view taken by him afterwards on the application of those provisions would amount to a change of opinion on material already considered by him.
The revenue contends that it is open to him to do so, and on that basis to reopen the assessment under section 147(b).
Reliance is placed on Kalyanji Mavji & Co. vs CIT, , where a Bench of two learned, Judges of this Court observed that a case where income had escaped assessment due to the "oversight, inadvertence or mistake" of the ITO must fall within section 34(1)(b) of the Indian Income Tax Act, 1922.
It appears to us, with respect, that the proposition is stated too widely and travels farther than the statute warrants in so far as it can be said to lay down that if, on re appraising the material considered by him during the original assessment, the ITO discovers that he has committed an error inconsequence of which income has escaped assessment, it is open to him to reopen the assessment.
In our opinion, an error discovere on a reconsideration of the same material (and no more) does not give him that power.
That was the view taken by this Court in Maharaj Kumar Kamal Singh vs CIT, [1959] 35 I.T.R. 1; CIT vs A. Raman & Co., and Bankipur Club Ltd. vs CIT and we do not believe that the law has since taken a different course.
Any observation in Kalyanji Mavji & Co. vs CIT, suggesting the contrary do not, we say with respect, lay down the correct law." (underlining ours) The Court proceeded further to observe: "A further submission raised by the revenue on section 147(b) of the Act may be considered at this stage.
It is urged that the expression "information" in section 147(b) refers to the realisation by the ITO that he has committed an error when making the original assessment.
It is said that, when upon receipt of the audit note the ITO discovers or realizes that a mistake has been committed in the original 636 assessment, the discovery of the mistake would be "information" within the meaning of section 147(b).
The submission appears to us inconsistent with the terms of section 147(b) Plainly, the statutory provision envisages that the ITO must first have information in his possession, and then in consequence of such information he must have reason to believe that income has escaped assessment.
The realisation that income has escaped assessment is covered by the words "reason to believe", and it follows from the "information" received by the ITO.
The information is not the realisation, the information gives birth to the realisation.
" Sri Ramachandran submits that these decisions support his contention that reassessment proceeding can be validly initiated only if there is some information received by the I.T.O. from an external source after the completion of the original assessment but not in a case like the present where there is nothing more before the I.T.O. than what was available to him when the original assessment was completed.
He also submits that the observations in the IENS case have cast doubts on the propositions enunciated in Kalyanji Mavji 's case (supra) and reiterates the proposition that reassessment proceedings cannot be availed of to revise, on the same material, the opinion formed or conclusion arrived at earlier in favour of the assessee.
On the other hand, Dr. Gaurisankar, appearing for the Revenue, mentioned that the decision in the IENS case holding that the opinion of an audit party would not constitute `information ' and qualifying the principles enunciated in Kalyanji Mavji is pending consideration by a larger Bench of this Court.
He, however, submitted that the reassessment in this case would be valid even on the strength of the observations in the IENS case.
We shall proceed to consider the correctness of this submission.
We have pointed out earlier that Kalyanji Mavji (supra) outlines four situations in which action under S.34(1)(b) can be validly initiated.
The IENS case has only indicated that proposition (2) outlined in this case and extracted earlier may have been somewhat widely stated; it has not cast any doubt on the other three propositions set out in Kalyanji Mavji 's case.
The facts of the present case squarely fall within the scope of propositions 2 and 4 enunciated in Kalyanji Mavji 's case.
Proposition (2) may be briefly summarised as permitting action even on a "mere change of opinion".
This is what has been doubted in the IENS case (supra) and we shall discuss its application to this case a 637 little later.
But, even leaving this out of consideration, there can be no doubt that the present case is squarely covered by proposition (4) set out in Kalyanji Mavji & Co. (supra).
This proposition clearly envisages a formation of opinion by the Income tax Officer on the basis of material already on record provided the formation of such opinion is consequent on "information" in the shape of some light thrown on aspects of facts or law which the I.T.O. had not earlier been conscious of.
To give a couple of illustrations, suppose an I.T.O., in the original assessment, which is a voluminous one involving several contentions, accepts a plea of the assessee in regard to one of the items that the profits realised on the sale of a house is a capital realisation not chargeable to tax.
Subsequently he finds, in the forest of papers filed in connection with the assessment, several instances of earlier sales of house property by the assessee.
That would be a case where the I.T.O. derives information from the record on an investigation or enquiry into facts not originally undertaken.
Again, suppose if I.T.O. accepts the plea of an assessee that a particular receipt is not income liable to tax.
But, on further research into law he finds that there was a direct decision holding that category of receipt to be an income receipt.
He would be entitled to reopen the assessment under s.147(b) by virtue of proposition (4) of Kalyanji Mavji.
The fact that the details of sales of house properties were already in the file or that the decision subsequently come across by him was already there would not affect the position because the information that such facts or decision existed comes to him only much later.
What then, is the difference between the situations envisaged in propositions (2) and (4) of Kalyanji Mavji (supra)? The difference, if one keeps in mind the trend of the judicial decisions, is this.
Proposition (4) refers to a case where the I.T.O. initiates reassessment proceedings in the light of "information" obtained by him by an investigation into material already on record or by research into the law applicable thereto which has brought out an angle or aspect that had been missed earlier, for e.g., as in the two Madras decisions referred to earlier.
Proposition (2) no doubt covers this situation also but it is so widely expressed as to include also cases in which the I.T.O., having considered all the facts and law, arrives at a particular conclusion, but reinitiates proceedings because, on a reappraisal of the same material which had been considered earlier and in the light of the same legal aspects to which his attention had been drawn earlier, he comes to a conclusion that an item of income which he had earlier consciously left out from the earlier assessment should have been brought to tax.
In other words, as pointed out in IENS case, it also 638 ropes in cases of a "bare or mere change of opinion" where the I.T.O. (very often a successor officer) attempts to reopen the assessment because the opinion formed earlier by himself (or, more often, by a predecessor I.T.O.) was, in his opinion, incorrect.
Judicial decisions had consistently held that this could not be done and the IENS case (supra) has warned that this line of cases cannot be taken to have been overruled by Kalyanji Mavji (supra).
The second paragraph from the judgment in the IENS case earlier extracted has also reference only to this situation and insists upon the necessity of some information which make the ITO realise that he has committed an error in the earlier assessment.
This paragraph does not in any way affect the principle enumerated in the two Madras cases cited with approval in Anandji Haridas, [1986] 21 S.T.C. 326.
Even making allowances for this limitation placed on the observations in Kalyanji Mavji, the position as summarised by the High Court in the following words represents, in our view, the correct position in law: "The result of these decisions is that the statute does not require that the information must be extraneous to the record.
It is enough if the material, on the basis of which the reassessment proceedings are sought to be initiated, came to the notice of the Income tax Officer subsequent to the original assessment.
If the Income tax Officer had considered and formed an opinion on the said material in the original assessment itself, then he would be powerless to start the proceedings for the reassessment.
Where, however, the Income tax Officer had not considered the material and subsequently come by the material from the record itself, then such a case would fall within the scope of section 147(b) of the Act.
" Let us now examine the position in the present case keeping in mind the narrow but real distinction pointed out above.
On behalf of the assessee, it is emphasised (a) that the amount of surplus is a very substantial amount,(b) that full details of the manner in which it had resulted had been disclosed, (c) that the profit and loss account, the profit and loss adjustment account and statement made before the I.T.O. had brought into focus the question of taxability of the surplus and (d) that decision in Ramachari 's case had been reported by 10.4.1962.
No Income tax Officer can be presumed to have completed the assessment without looking at all this material and the said decision.
No doubt, some doubt had been thrown as to whether a statement had been given at the time of original assessment that the amount 639 of surplus was not taxable as an income or a capital gain but the case has proceeded on the footing that such a statement was there before the officer.
This, therefore, is nothing but a case of "change of opinion".
On the other hand, the authorities and the Tribunal have drawn attention to the fact that the return, the section 143(2) notice and assessment were all on the same day and counsel for the Revenue urged that obviously, in his haste, the I.T.O. had not looked into the facts at all.
It is urged that no Income tax Officer who had looked into the facts and the law could have failed to bring the surplus to tax in view of then recent pronouncement in Ramachari 's case.
Dr. Gaurishankar submitted that the Tribunal has found that the I.T.O. "had acted mechanically in accepting the return without bringing his mind to play upon the entry in the statement with reference to the distribution of the assets".
He pointed out that there is no evidence of any enquiry with reference to this aspect and that, the amount involved being sufficiently large, the I.T.O., if he had been aware of the existence of the entry would certainly have discussed it.
He urged that the question whether the I.T.O. had considered this matter at the time of the original assessment or not is purely a question of fact and the Tribunal 's conclusion thereon having been endorsed by the High Court, there is no justification to interfere with it at this stage.
We think there is force in the argument on behalf of the assessee that, in the face of all the details and statement placed before the I.T.O. at the time of the original assessment, it is difficult to take the view that the Income tax Officer had not at all applied his mind to the question whether the surplus is taxable or not.
It is true that the return was filed and the assessment was completed on the same date.
Nevertheless, it is opposed to normal human conduct that an officer would complete the assessment without looking at the material placed before him.
It is not as if the assessment record contained a large number of documents or the case raised complicated issues rendering it probable that the I.T.O. had missed these facts.
It is a case where there is only one contention raised before the I.T.O. and it is, we think, impossible to hold that the Income tax Officer did not at all look at the return filed by the assessee or the statements accompanying it.
The more reasonable view to take would, in our opinion, be that the Income tax Officer looked at the facts and accepted the assessee 's contention that the surplus was not taxable.
But, in doing so, he obviously missed to take note of the law laid down in Ramachari which there is nothing to show, had been brought to his notice.
When he subsequently became aware of the decision, he initiated proceedings under section 147(b).
The material which constituted information and on 640 the basis of which the assessment was reopened was the decision in Ramachari.
This material was not considered at the time of the original assessment.
Though it was a decision of 1961 and the I.T.O. could have known of it had he been diligent, the obvious fact is that he was not aware of the existence of the decision then and, when he came to know about it, he rightly initiated proceedings for assessment.
We may point out that the position here is more favorable to the Revenue than that which prevailed in the Madras cases referred to earlier.
There, what the I.T.O. had missed earlier was the true purport of the relevant statutory provisions.
It seems somewhat difficult to believe that the I.T.O. could have failed to read properly the statutory provisions applicable directly to facts before him (though that is what seems to have happened).
Perhaps an equally plausible view, on the facts, could have been taken that he had considered them and decided, in one case, not to apply them and, in the other, on a wrong construction thereof.
In the present case, on the other hand, the material on which the I.T.O. has taken action is a judicial decision.
This had been pronounced just a few months earlier to the original assessment and it is not difficult to see that the I.T.O. must have missed it or else he could not have completed the assessment as he did.
Indeed it has not been suggested that he was aware of it and yet chose not to apply it.
It is therefore much easier to see that the initiation of reassessment proceedings here is based on definite material not considered at the time of the original assessment.
In the above view of the matter, we uphold the High Court 's view on the first question.
The second question raises a more difficult problem.
There can be no doubt that the decision of the Madras High Court in Ramachari squarely covers the situation.
Ramachari holds that the principle of valuing the closing stock of a business at cost or market at the option of the assessee is a principle that would hold good only so long as there is a continuing business and that where a business is discontinued, whether on account of dissolution or closure or otherwise, by the assessee, then the profits cannot be ascertained except by taking the closing stock at market value.
Ramachari has subsequently been followed by the Kerala High Court in Popular Workshops vs Commissioner of Income Tax, and in Popular Automobiles vs Commissioner of Income Tax, Shri Ramachandran contends that the decision in Ramachari 641 does not lay down the correct law.
He submits than, while it is no doubt true that the closing stock has to be valued, the well settled principle is that it should be valued, at cost or market whichever is lower and there is no justification for laying down a different principle for valuation of the closing stock at the point of discontinuance of business unless the goods are actually sold by the assessee at the time of discontinuance.
Further, it has been held by a series of decisions of this Court that when a firm is dissolved and the assets are distributed among the partners, there is no sale or transfer of the assets of the firm to the various partners: vide, Addanki Narayanppa vs Bhaskara Krishnappa, ; ; CIT vs Dewas Cine Corporation, ; CIT vs 2Bankey Lal Vaidya, ; Malabar Fisheries Co. vs C.I.T., and in Sunil Siddharthbhai vs C.I.T., He submits that, in logical sequence, dissolution comes first and distribution of assets comes later.
Therefore, revaluation of the assets of a firm, which is only for the division of the assets among the partners on a real and not a notional basis, is part of the division of the assets and therefore logically, in point of time, subsequent to the dissolution of the firm.
Since the revaluation takes place after the dissolution no profits can be said to have accrued to the firm by the process of revaluation.
The revaluation of the assets is not in the course of business and is not an activity which can partake of the nature of trade.
Assuming but not conceding that it is possible to have a revaluation of the assets, for example, stock in trade before dissolution, any excess which arises on the revaluation is only an imaginary or notional profit and cannot be brought to tax for the following reasons: (i) As a result of such revaluation, there can be no profit, because the firm cannot make a profit out of itself: Vide Kikabhai Premchand vs C.I.T., (ii) The process of revaluation of stock by itself cannot bring in any real profits: vide C.I.T. vs K.A.R.K. Firm, [1934]2 I.T.R. 183; Chainrup Sampatram vs C.I.T., [1953) and C.I.T. V. Hind Construction ltd., [1972] 83 I.T.R. 211; and (iii) It is well settled that what is taxable under the income tax law is only real income vide C.I.T. vs M/s Shoorji Vallabhdas and Co., [1962] 46 I.T.R. 144 and C.I.T. vs Birla Gwalior (P) Ltd., There is, therefor, no principle by which the stock in trade can be valued at market price so as to bring to tax the notional profits which might in future be realised as a result of the sale of the stock in trade.
642 The question posed before us is a difficult one.
We think, however, that the High Court was right in pointing out that the several decisions relied upon for the assessee as to the nature of the transaction by which a firm, on dissolution, distributes its assets among its partners, have no relevance in the present case.
As the High Court rightly observed, those cases relate to what happens after or in consequence of the dissolution of a firm whereas we are here concerned with a question that arises before or at the time of dissolution.
What we have to decide is the basis on which, in making up the accounts of a firm upto the date of dissolution, the closing stock with the firm as at a point of time immediately prior to the dissolution is to be valued.
It is this principle that has been decided in Ramachari and the High Court decisions following it (including the one under appeal) and the question is whether they lay down the correct law.
In the first place, it is settled law that the true trading results of a business for an accounting period cannot be ascertained without taking into account the value of the stock in trade remaining at the end of the period.
Though, as pointed out by this Court in Chainrup Sempatram vs C.I.T., it is a misconception to think that any profit arises out of the valuation of closing stock, it is equally true that such valuation is a necessary element in the process of determining the trading results of the period.
This is true in respect of any method of accounting and in C.I.T. vs Krishnaswamy Mudaliar, this Court pointed out that, even where the assessee is following the cash system of accounting, the valuation of closing stock cannot be dispensed with.
In this decision, this Court quoted with approval the following observations in C.I.R. vs Cock, Russel & Co. Ltd. "There is no word in the statutes or rules which deals with this question of valuing stock in trade.
There is nothing in the relevant legislation which indicates that in computing the profits and gains of a commercial concern the stock in trade at the start of the accounting period should be taken in and that the amount of the stock in trade at the end of the period should also be taken in.
It would be fantastic not to do it: it would be utterly impossible accurately to assess profits and gains merely on a statement of receipts and payments or on the basis of turnover.
It has long been recognised that the right method of assessing profits and gains is to take into account the value of the stock in trade at the beginning and the value of the stock in trade at the 643 end as two of the items in the computation.
I need not cite authority for the general proposition, which is admitted at the Bar, that for the purposes of ascertaining profits and gains the ordinary principles of commercial accounting should be applied, so long as they do not conflict with any express provision of the relevant statutes.
" Next the principles as to the method of valuation of the closing stock are equally well settled.
Lord President Clyde set these out in Whimster & Co. vs C.I.R., in the following words: "In computing the balance of profits and gains for the purposes of income tax,. two general and fundamental commonplaces have always to be kept in mind.
In the first place, the profits of any particular year or accounting period must be taken to consist of the difference between the receipts from the trade or business during such year or accounting period and the expenditure laid out to earn those receipts.
In the second place, the account of profit and loss to be made up for the purpose of ascertaining that difference must be framed consistently with the ordinary principles of commercial accounting, so far as applicable, and in conformity with the rules of the Income tax Act, or of that Act as modified by the provisions and schedules of the Acts regulating excess profits duty, as the case may be.
For example, the ordinary principles of commercial accounting require that in the profit and loss account of a merchant 's manufacturer 's business the values of the stock in trade at the beginning and at the end of the period covered by the account should be entered at cost or market price, whichever is the lower; although there is nothing about this in the taxing statutes.
" The principle behind permitting the assessee to value the stock at cost is very simple.
In the words of Bose, J. In Kikabhai Premchand vs C.I.T., [1953] 24 I.T.R. 506 S.C. it is this: "The appellant 's method of book keeping reflects the true position.
As he makes his purchases he enters his stock at the cost price on one side of the accounts.
At the close of the year he enters the value of any unsold stock at cost on the other side of the accounts thus cancelling out the entries relating to the sum unsold stock earlier in the 644 accounts; and then that is carried forward as the opening balance in the next year 's account.
This cancelling out of the unsold stock from both sides of the accounts leaves only the transactions on which there have been actual sales and gives the true and actual profit or loss on his year 's dealings.
" As against this, the valuation of the closing stock at market value invariably will create a problem.
For if the market value is higher than cost, the accounts will reflect notional profits not actually realised.
On the other hand, if the market value is less, the assessee will get the benefit of a notional loss he has not incurred.
Nevertheless, as mentioned earlier, the ordinary principles of commercial accounting permit valuation "at cost or market, whichever is the lower".
The rationale behind this has been explained by Patanjali Sastri, C.J. in Chainrup Sampatram vs C.I.T., , S.C. where an attempt was made to value the closing stock at a market value higher than cost.
The learned Chief Justice observed: "It is wrong to assume that the valuation of the closing stock at market rate has, for its object, the bringing into charge any appreciation in the value of such stock.
The true purpose of crediting the value of unsold stock is to balance the cost of those goods entered on the other side of the account at the time of their purchase, so that the cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions on which there have been actual sales in the course of the year showing the profit or loss actually realised on the year 's trading.
As pointed out in paragraph 8 of the Report of the Committee on Financial Risks attaching to the holding of Trading Stocks, 1919, "As the entry for stock which appears in a trading account is merely intended to cancel the charge for the goods purchased which have not been sold, it should necessarily represent the cost of the goods.
If it is more or less than the cost, then the effect is to state the profit on the goods which actually have been sold at the incorrect figure. .
From this rigid doctrine one exception is very generally recognised on prudential grounds and is now fully sanctioned by custom, viz., the adoption of market value at the date of making up accounts, if that value is less, than cost.
It is of course an anticipation of the loss that may be made on those goods in 645 the following year, and may even have the effect, if prices rise again, of attributing to the following year 's results a greater amount of profit than the difference between the actual sale price and the actual cost price of the goods in question" (extracted in paragraph 281 of the Report of the Committee on the Taxation of Trading Profits presented to British Parliament in April 1951).
While anticipated loss is thus taken into account, anticipated profit in the shape of appreciated value of the closing stock is not brought into the account, as no prudent trader would care to show increased profit before its actual realisation.
This is the theory underlying the rule that the closing stock is to be valued at cost or market price whichever is the lower, and it is now generally accepted as an established rule of commercial practice and accountancy.
" From the above passage, it will be seen that the proper practice is to value the closing stock at cost.
That will eliminate entries relating to the same stock from both sides of the account.
To this rule custom recognises only one exception and that is to value the stock at market value if that is lower.
But on no principle can one justify the valuation of the closing stock at a market value higher than cost as that will result in the taxation of notional profits the assessee has not realised.
The High Court in Ramachari has, however, outlined another exception and seems to have rested this on two considerations.
The first is the observation of Lord Buckmaster in C.I.T. vs Ahmedabad New Cotton Mills Co. Ltd., [1930] L.R. 57 I.A. 21 to the following effect: "The method of introducing stock into each side of a profit and loss account for the purpose of determining the annual profits is a method well understood in commercial circles and does not necessarily depend upon exact trade valuations being given to each article of stock that is so introduced.
The one thing that is essential is that there should be a definite method of valuation adopted which should be carried through from year to year, so that in case of any division from strict market values in the entry of the stock at the close of one year it will be rectified by the accounts in the next year.
" From these observations, the High Court inferred: "It is obvious from the above that the privilege of valuing 646 the opening and closing stock in a consistent manner is available only to continuing business and that it cannot be adopted where the business comes to an end and the stock in trade has to be the disposed of in order to determine the exact position of the business on the date of closure. " The second consideration which prevailed with the High Court is reflected in the following passage from the judgment: "It seems to us that none of these cases has any application to the facts of the present case .
There is no authority directly in point dealing with this question, where a partnership concern dissolves its business in the course of the accounting year, what is the basis on which the stock in trade has to be valued as on the date of dissolution.
We have accordingly to deal with the matter on first principles.
The case of a firm which goes into liquidation forms a close parallel to the present case.
In such a case all the stock in trade and other assets of the business will have to be sold and their value realised.
It cannot be controverted that it is only by doing so that the true state of the profits or losses of the business can be arrived at.
The position is not very different when the partnership ceases to exist in the course of the accounting year.
The fact that Ramachari, one of the ex partners, took over the entire stock and continued to run the business on his own, is not relevant at all, when we consider the profits or losses of the partnership ' which has come to an end.
It should, therefore, follow that in order to arrive at the correct picture of the trading results of the partnership on the date when it ceases to function, the valuation of the stock in hand should be made on the basis of the prevailing market price.
" We are not quite sure that the first of the considerations that prevailed with the High Court is relevant in the present case.
Even in a continuing business, the valuation at market value is permissible only when it is less than cost; it is not quite certain whether the rules permit an assessee if he so desires to value closing stock at market value where it is higher than cost.
But, in either event, it is allowed to be done because its effect can be offset over a period of time.
But here, where the business comes to a close, no future adjustment of an over 647 or under valuation is possible, In this context, it is difficult to see how valuation, at other than cost, can be justified on the principle of Ahmedabad Advance Mills case (supra).
We, however, find substance in the second consideration that prevailed with the High Court.
The decision in Muhammad Hussain Sahib vs Abdul Gaffor Sahib, [1950] 1 M.L.J.81 correctly sets out the mode of taking accounts regarding the assets of a firm.
While the valuation of assets during the subsistence of the partnership would be immaterial and could even be notional, the position at the point of dissolution is totally different: "But the situation is totally different when the firm is dissolved or when a partner retires.
The settlement of his account must be not on a notional basis but on a real basis, that is every asset of the partnership should be converted into money and the account of each partner settled on that basis. .
The assets have to be valued, of course, on the basis of the market value on the date of the dissolution . " This applies equally well to assets which constitute stock in trade.
There can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial man, would value the assets only on a real basis and not at cost or at their other value appearing in the books.
A short passage from Pickles on Accountancy (Third Edn), p. 650 will make this clear: "In the event of the accounts being drawn up to the date of death or retirement, no departure from the normal procedure arises, but it will be necessary to see that every revaluation required by the terms of the partnership agreement is made.
It has been laid down judicially that, in the absence of contrary agreement, all assets and liabilities must be taken at a "fair value," not merely a "book value" basis, thus involving recording entries for both appreciation and depreciation of assets and liabilities.
This rule is applicable, notwithstanding the omission of a particular item from the books, e.g. investments, goodwill (Cruikshank vs Sutherland).
Obviously, the net effect of the revaluation will be a profit or loss divisible in the agreed profit or loss sharing ratios.
" 648 The real rights of the partners cannot be mutually adjusted on any other basis.
This is what happened in Ramachari.
Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for them to contend that the valuation should be on some other basis.
Once this principle is applied and the stock in trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm and has to be charged to tax.
The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view were possible.
For these reasons, we agree with the answer given by the High Court to the second question as well.
The appeal fails and is dismissed.
But we would make no order regarding costs.
R.N.J. Appeal dismissed.
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The Appellant Assessee, a partnership firm was engaged mainly, in Malaya, in money lending business since 1949 and incidental to this business was also doing the business of sale and purchase of house properties, gardens and estates.
It was reconstituted under a deed dated 26.3.1960.
The firm was dissolved on 13.3.1961 and closed its accounts with effect from that date.
In its income tax return filed on 10.4.1962 for the assessment year 1961 62 it had filed a profit and loss account wherein amount of $.1,01,248 equivalent of Rs.1,58,057 was shown as "difference on revaluation of the estates, gardens and house properties" on the dissolution of the firm.
In the memo of adjustment for income tax purposes this amount was deducted as being not assessable either as revenue or capital.
The Income Tax Officer issued notice under section 23(2) of the Act on that very day and completed the assessment also on the same day after making a petty addition of Rs.2088 paid as property tax in Malaya.
When for the subsequent year 1962 63, the assessee filed its return showing nil income stating in the forwarding letter that the Firm had been dissolved on 13.3.1961, the I.T.O. wrote to the assessee that the revaluation difference of Rs.1,58,057 should have been brought to tax in the previous year.
The assessee replied that no profit or loss could be assessed on a revaluation of assets, that the assessee was gradually winding up its business in Malaya, the surplus would be only capital 625 gains and that revalutation had been at the market price prevalent since 1954 and thus no capital gains were chargeable to tax.
Not satisfied, the I.T.O. issued a notice under section 148 read with Section 147(b) of the Income Tax Act, 1961.
The assessee filed objections.
Overruling all the objections, the Income Tax Officer completed reassessment of the assessee Firm adding back the sum of Rs. 1,58,057 to the previously assessed income.
Having failed right upto the High Court, the assessee came in appeal before this Court.
Dismissing the appeal, affirming the decision of the High Court, this Court.
HELD: (1) The proceedings u/s 147(b) were validly initiated.
The facts of this case squarely fall within the scope of propositions (2) and (4) enunciated in Kalyanji Mavji 's case.
Proposition (2) may be briefly summarised as permitting action even on a "mere change of opinion".
This is what has been doubted in the IENS case.
But, even leaving this out of consideration, there can be no doubt that the present case is squarely covered by proposition (4) set out in Kalyanji 's case.
This proposition clearly envisages a formation of opinion by the Income Tax Officer on the basis of material already on record provided the formation of such opinion is consequent on "information" in the shape of some light thrown on aspects of facts or law which the Income Tax Officer had not earlier been conscious of.
[636G 637B] The difference between the situations envisaged in propositions (2) and (4) of Kalyanji Mavji is this, that proposition (4) refers to a case where the Income Tax Officer initiates reassessment proceedings in the light of "information" obtained by him by an investigation into material already on record or by research into the law applicable thereto which has brought out an angle or aspect that had been missed earlier.
Proposition (2) no doubt covers this situation also but it is so widely expressed as to include also cases in which the Income Tax Officer, having considered all the facts and law, arrives at a particular conclusion, but reinitiates proceedings because, on a reappraisal of the same material which had been considered earlier and in the light of the same legal aspects to which his attention had been drawn earlier, he comes to a conclusion that an item of income which he had earlier consciously left out from the earlier assessment should have been brought to tax.
[637F H] It is true that the return was filed and the assessment was completed on the same date.
Nevertheless, it is opposed to normal human 626 conduct than an officer would complete the assessment without looking at the material placed before him.
It is not as if the assessment record contained a large number of documents or the case raised complicated issues rendering it probable that the Income Tax Officer had missed these facts.
It is a case where there is only one contention raised before the Income Tax Officer and it is, we think, impossible to hold that the Income Tax Officer did not at all look at the return filed by the assessee or the statements accompanying it.
The more reasonable view to take would, in our opinion, be that the Income Tax Officer looked at the facts and accepted the assessee 's contention that the surplus was not taxable.
But, in doing so, he obviously missed to take note of the law laid down in Ramachari which there is nothing to show, had been brought to his notice.
when he subsequently became aware of the decision, he initiated proceedings under section 147(b).
The material which constituted information and on the basis of which the assessment was reopened was the decision in Ramachari.
this material was not considered at the time of the original assessment.
Though it was a decision of 1961 and the Income Tax Officer could have known of it had he been diligent, the obvious fact is that he was not aware of the existence of that decision then and, when he came to know about it, he rightly initiated proceedings for reassessment.
[639E 640B] The material on which the Income Tax Officer has taken action is a judicial decision.
This had been pronounced just a few months earlier to the original assessment and it is not difficult see that the Income Tax Officer must have missed it or else he could not have completed the assessment as he did.
Indeed it has not been suggested that he was aware of it and yet chose not to apply it.
It is therefore, much easier to see that the initiation of reassement proceedings here is based on definite material not considered at the time of the original assessment.
[640D E] (2) The stock in trade of a firm at the time of its disolution, has to be assessed at a fair value.
there can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial men, would value the assets only on a real basis and not at cost or at their other value appearing in the books.
The real rights of the partners cannot be mutually adjusted on any other basis.
This is what happened in Ramachari.
Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for them to contend that the valuation should be on some other basis.
Once this principle is applied and the stock in trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm 627 and has to be charged to tax.
The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view was possible.
[642B D, 647E,648A C] Popular Automobiles vs Commissioner of Income Tax, ; Sunil Siddharthbhai vs Commissioner of Income Tax, ; Pupular Workshops vs Commissioner of Income Tax ; Malabar Fisheries Co. vs Commissioner of Income Tax, ; Indian & Eastern Newspaper Society vs Commissioner of Income Tax, ; Kalyanji Mavji & Co. vs Commissioner of Income Tax, [1976] 102 I.T.R. 287; M/s A.L.A. Firm vs The Commissioner of Income Tax, Madras ; Commissioner of Income Tax vs Hind Construction Ltd., ; Commissioner of Income Tax vs Birla Gwalior (P) Ltd., ; Anandji Haridas & Co. (P) Ltd. vs S.P. Kushare, Sales Tax Officer, [1968] 21 S.T.C. 326; Commissioner of Income Tax vs Dewas Cine Corporation, ; Ramachari & Co. vs Commissioner of Income Tax, ; Maharaj Kumar Kamal Singh vs Income Tax Officer, S.C.; Commissioner of Income Tax vs A Raman & Co., S.C.; Salem Provident Fund Society Ltd. vs Commissioner of Income Tax, ; Commissioner of Income Tax vs Rathinasabapathy Mudaliar, ; Addanki Narayanappa vs Bhaskara Krishnappa, ; ; Commissioner of Income Tax vs Bankey Lal Vaidya ; Kikabhai Premchand vs Commissioner of Income Tax, [1953] 24 I.T.R. 506 (S.C.); Commissioner of Income tax vs K.A.R.K. Firm, ; Chainrup Sampathram vs Commissioner of Income Tax, ; Commissioner of Income Tax vs M/s. Shoorji Vallabhadas & Co., , Commissioner of Income Tax vs Krishnaswamy Muldaliar, ; Commissioner of Income Tax vs Ahmedabad New Cotton Mills Co. Ltd., [1930] L.R. 57 I.A. 21; Muhammad Hussain Sahib vs Abdul Gaffor Sahib, reffered to.
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ivil Appeal No. 3693 of 1982.
From the Judgment and Order dated 29.1.1982 of the Patna High court in C.W.J.C. No. 4087 of 1981.
Ranjit Kumar for the Appellant.
Ex Parti for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is directed against the order of the High Court of Judicature at Patna dated 29 1 1982 passed in Civil Writ Number 4087 of 1981 dismissing the Writ Petition of the appellant in limine.
The appellant, Bihar State Road Transport Corporation, is a 669 State Transport Undertaking.
Under the provision of the (hereafter referred to as the 'Act '), the State Transport Authority invited applications for the grant of stage carriage permits for the route named Bhukunda Chaibasa via Patratu Pithoria Kanke Ranchi Chakradharpur part of which, that is, Ranchi Chaibasa is covered under a notified scheme dated 1 4 1960, duly in force, under the provisions of the Act.
On applications received in response to the invitation, the Corporation filed its objections before the State Transport Authority claiming that no private operator could be permitted to operate on the said route, as part of it, being Ranchi Chaibasa, was by itself a notified route and the grant of permits on the route in question would contravene a notified scheme.
The objection of the Corporation was rejected by the State Transport Authority in its meeting held on 23rd and 24th January, 1979 taking the view that the overlapping Ranchi Chaibasa route was restrictedly notified for direct services only and as such there could be no legal objection to the grant of permits on the Bhukunda Chaibasa route.
It accordingly granted permits to respondents 3 and 4 herein.
Appellant 's appeal before the State Transport Appellate Tribunal, Biharwas dismissed and the view of the State Transport Authority was upheld.
The Appellate Tribunal in support of its view placed reliance on a division bench of the Patna High Court in M/s Marwari Motor Service vs Chotanagpur Regional Transport Authority and others, AIR 1973 Patna (Vol 60) 273 in which such an objection as raised herein was negatived.
The appellant 's writ petition against the orders of the State Transport Appellat Tribunal, Bihar was dismissed in limine giving cause to the appellant to approach this Court for appropriate relief.
The notified scheme dated 1 4 1960, afore referred to, where under the Ranchi Chaibasa route was declared a nationalised route was the brain child of the Appellant Corporation itself.
Initially a draft scheme was published in the Bihar Gazette on 13 1 1960 under the provisions of Section 68 C of the Act.
Objections were invited to the proposed scheme and after considering the objections received, the State Government approved the scheme with some modifications under section 68 D(2) of the Act.
The approved scheme was then notified under section 68 D(3) of the Act in the Bihar Gazette on April 1, 1960.
The relevant extract of the scheme is reproduced below: "The Bihar State Road Transport Corporation shall run and operate stage carriage services relating to routes or portions thereof specified below to the complete exclusion of other persons except those who, on the dates, specified 670 below, hold permanent permits to run stage carriages in those routes and are hereby allowed to operate them until the dates of expiration of the existing permits.
Nature of Name of route Name of Date from which No. service service services as proposed to be plied 1.
Stage Ranchi Muri All 1st April, 1961 carriage or portions services thereof 2.
Ditto Hazaribagh Ditto 1st April, 1960 Ranchi or portions thereof 3.
Ditto Barhi Bagodar Ditto Ditto Dumri Gobind pur or portions thereof 4.
Ditto Giridih Dumri Ditto Ditto or portions thereof 5.
Ditto Giridih Jamua Ditto 1st April, 1961 Kedarma or portions thereof 6.
Ditto Jamua Chakai Ditto Ditto or portions thereof 7.
Ditto Ranchi Chaibasa Ditto 1st April,1960 (direct service) It is evident from the Entry in serial No. 7 that the name of the route is Ranchi Chaibasa and in this Entry alone that the bracketed words 'direct service ' finds mention whereas in the remaining serial nos.
1 to 6, the main routes or portions thereof are contrastingly 671 mentioned.
In Marwari Motor Service 's case (supra), the then writ petitioner stood already given a stage carriage permit for the route Hazaribag Hazaribag Road and when its renewal was objected to by the corporation on the ground that it would overlap Hazaribag Bagodar notified route, the words 'direct service ' occuring in the relevant entry of the notification under the notified route was required to be interpreted.
The contention of the said writ petitioner before the High Court was that though private operators stood ousted on the Hazaribag Bagodar route, it could not be ousted from operating on a longer or shorter route even though overlapping wholly or partially on the Hazaribag Bagodar route.
The corporation refuted the argument by contending that no private operator could be permitted to operate on any portion of the route even if he had tended to operate on a longer or a shorter route.
Confronted with this situation, the Patna High Court ventured, in the absence of any direct binding judicial precedent, to solve the question by adopting the interpretation given to the bracketed words 'direct service by the Transport Minister of the Bihar Government to mean the exclusion of private operators for direct transport services only and not to the exclusion of private operators thereon overlapping on longer or shorter routes.
Another factor which appealed to the High Court was that though the scheme had come into force in 1960 and Hazaribag Bagodar route had been nationalised still the then writ petitioner had thereafter been kept granted route permits on the Hazaribag Hazaribag Road route despite overlapping on the nationalised routes.
The High Court in these circumstances made the following observations: The correct meaning is that private operators who were operating directly on Hazaribag Bagodar route were excluded, private operators having these two termini were not allowed to operate but private operators having only one terminus out of these two termini or passing through this route having different termini were not excluded in the approved scheme".
Relying on the said ratio the Transport authorities overruled the objection of the Corporation.
We have had the advantage of hearing Mr. Ranjit Kumar, learned counsel for the appellant only since no one appeared either on behalf of the State of Bihar nor for the permit holders respondents 3 and 4.
The sole point for consideration is whether the view taken by the Patna High Court in Marwari Motor Service 's case (supras in any more rele 672 vant in view of the decision of the Constitution Bench of this Court in Adarsh Travels Bus Service & Another vs State of U.P. & Others, [1985] (Supp.) 3 SCR 661.
In Adarsh Travels 's case (supra), this Court ruled that if the route has been nationalised under Chapter IV A of the , a private operator with a permit to ply stage carriage for another route, which has a common overlapping sector with the nationalised route, can ply his vehicle over that part of the overlapping common sector if he does not pick up or drop passengers on the overlapping part of the route, and the question would really get the right answer on the terms of the scheme rather than on the provisions of the statute.
The word 'route ' was introduced to be defined in section 2(28A) of the Act by amendment from March 2, 1970 to mean 'the line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another.
Spelling out the necessity for its so defining it was recorded: "The introduction of section 2(28A) defining the expression 'route ' appears to have been necessitated to dispel the confusion consequent upon the seeming acceptance by this Court in Nilkantha Prasad and Others vs State of Bihar, [1962] Supp. 1 SCR 728 of the suggested differences between 'route ' and 'highway ' by the Privy Council in Kelani valley Motor Transit Co. Ltd. vs Colombo Ratnapura Omnibus Co. Ltd., where it was said, 'A "highway" is the physical track along which an omnibus runs, whilst a "route" appears to their Lordships to be an abstract conception of line of travel between one terminus and another, and to be something distinct from the highway traversed . there may be alternative roads leading from one terminus to another but that does not make the route any highway the same. ' The present definition of route makes it a physical reality instead of an abstract conception and no longer makes it something distinct from the highway traversed.
" In the light of the above observations Ranchi Chaibasa route is identified as the line of travel on which State Transport Undertaking on nationalisation is allowed to run its vehicles.
The bracketed words 'direct service ' occuring in serial No. 7 when contrasted with entries in serial nos.
1 to 6 reveal that the total route of Ranchi Chaibasa, without leaving any portion, stood nationalised signifying by its name that 673 Ranchi Chaibasa route is a straight and direct line of travel which would be traversed by a vehicle by the State Transport Undertaking between two termini rendering all kinds of services.
Any further interpretation would frustrate the object of Chapter IV A whereunder the scheme is prepared.
It was observed in Adarsh Travel 's case (supra) as follows: "It is well known that under the guise of the so called 'corridor restrictions ' permits over longer routes which cover shorter notified routes 'overlapping ' parts of notified routes are more often that no misutilised since it is next to nigh impossible to keep a proper check at every point of the route.
Often times permits for plying stage carriages from a point a short distance beyond one terminus to a point at a short distance beyond another terminus of a notified route have been applied for and granted subject to the so called 'corridor restrictions ' which are but mere ruses or traps to obtain permits and to frustrate the scheme.
If indeed there is any need for protecting the travelling public from inconvenience, the State Transport Undertaking and the Government will have to make sufficient provision in the scheme itself to avoid inconvenience being caused to the travelling public.
" If the interpretation put by the Patna High Court in Marwari Motor Service 's case (supra) to the bracketed words 'direct service ' is to be kept valid, it would frustrate the very purpose of nationalisation, for any person in that event could operate on a nationalised route by adding thereto, or substracting therefrom, some kilometerage and keep one terminus as a point of start, or a point of ending, on an un notified route and put forward his willingness to submit himself to the discipline called 'corridor restrictions ' which practice has been deprecated by this Court.
For the views afore expressed, we are of the view that Marwari Motor Service 's case (supra) militates against the principles settled in Adarsh Travel 's case (supra) and thus it should be left to be confined to the facts of that case and not any more a binding precedent.
Having taken that view, we come to the conclusion that the State Transport Authority and State Transport Appellate Tribunal were in error in rejecting the objections of the appellant and High Court too was in error in dismissing the writ petition in limine.
Accordingly, instead of remanding the matter to the High Court, we allow this appeal and 674 quash the aforesaid three orders but without any order as to costs.
Since there was no opposition, we permit respondents 3 and 4 to keep plying vehicles on their permits, subject of course to their being subsisting and valid till date, uptill 31st March, 1991, and not any further, to avoid abrupt disruption of transport facilities.
We also leave it open to the State Government to take such steps as are further necessary to avoid inconvenience to the travelling public and for that purpose it may coordinate with the appellant corporation by making suitable amendment and provisions in the scheme to further that cause.
R.N.J. Appeal allowed.
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The State Transport Authority, Bihar invited application for grant of Stage Carriage permits for the route named, Bhukunda Chaibasa via Patratu Pithoria Kanke Ranchi Chakradharpur part of which, that is, Ranchi Chaibasa is covered under a notified Scheme dated 1.4.1960, duly in force, under the Act.
The Bihar State Road Transport Corporation, a State Undertaking, filed its objections claiming that no private operator could be permitted to operate the said route as part of the route being Ranchi Chaibasa was itself a notified route and grant of permits on the route in question would contravene the notified Scheme.
Taking the view that the over lapping Ranchi Chaibasa route was restrictedly notified for direct services only, the objections raised by the Corporation were rejected and permits for the route in question granted to respondents 3 and 4.
Corporation 's appeal to the State Transport Appellate Tribunal and thereafter Writ Petition before the Patna High Court being unsuccessful, it has come in appeal by special leave against the judgment of the High Court dismissing the Writ Petition in limine.
Allowing the appeal and quashing all the three orders, this Court.
HELD: In the light of the observations made in Constitution 668 Bench decision of this Court in Adarsh Travels ' case defining the word 'route ', the Ranchi Chibasa route is identified as the line of travel on which State Undertaking on nationalisation is allowed to run its vehicles.
The bracketed words 'direct service ' occuring in seriol No. 7 when contrasted with entries in serial nos.
1 to 6 reveal that the total route of Ranchi Chaibasa, without leaving any portion, stood nationalised signifying by its name that Ranchi Chaibsa route is a straight and direct line of travel which would be traversed by a vehicle by the State Transport Undertaking between two termini rendering all kinds of services.
Any further interpretation would frustrate the object of Chapter IV A whereunder the scheme is prepared.
[672G 673B] If the interpretation put by the Patna High Court in Marwari Motor Service 's case to the bracketed words 'direct service ' is to be kept valid, it would frustrate the very purpose of nationalisation, for any person in that event could operate on a nationalised route by adding thereto, or substracting therefrom, some kilometerage and keep one terminus as a point of start, or a point of ending, on an un notified route and put forward his willingness to submit himself to the discipline called 'corridor restictions ' which practice has been deprecated by this Court.
[673E F] M/s Marwari Motor Service vs Chotanagpur Regional Transport Authority and Others, AIR 1973 Patna (Vol. 60) 273, referred to.
Adarsh Travels Bus Service & Another vs Stat of U.P. & Others, [1985] (Suppl.) 3 SCR 661, followed.
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: Criminal Appeal Nos. 4 & 5 of 1979.
From the Judgment and Order dated 21.3.1978 of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978.
S.K. Kulkarani and P.C. Kapur (NP) for the Appellant.
Arun Jetley, Additional Solicitor General, Ms. Indu Malhotra, M.N. Shroff, P. Parmeshwaran, Ms. A. Subhashini, Ms. Ayesha Karim and P.K. Mullick for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J.
These criminal appeals by special leave granted under Article 136 of the Constitution of India are preferred by the appellant questioning the correctness of the judgment of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978 whereby the High Court set aside the judgment and orders dated 2.1.1978 of the Sessions Judge, Kutch at Bhuj made in Criminal Revision Application Nos. 46 and 45 of 1976 confirming the orders dated 19.6.76 passed by the Judicial Magistrate, First Class, Kutch in Application Exh.
Nos. 94 and 98 in Criminal Case Nos. 929 and 930 of 1973 respectively.
The factual matrix that have relevance to the questions, raised and canvassed at the hearing may be briefly stated.
A raid conducted by the officers of the Customs Department in the business cum residential premises of the appellant on 17.9.1971 resulted in the seizure of some gold Lagadis bearing foreign marks, primary gold, gold ornaments and silver bricks, coins etc.
to the value of about Rs.8,48,422.
During the said raid a sum of Rs.79,000 was also seized.
In respect of this incident, the Assistant Collector of Customs filed two separate complaints on 26.11.1973 against the appellant in the court of the Judicial Magistrage, First Class, Anjar, being criminal cases Nos. 929 and 930 of 1973 for offences punishable (1) under the 715 provisions of the and (2) under the Gold Control Act 1968.
After examination of the prosecution as well as the defence witnesses and recording of the statements of the appellants under Section 342 of the old Code of Criminal Procedure (hereinafter referred to as the Code ') arguments were advanced on behalf of the appellant/accused.
The prosecution at this stage before commencing its arguments filed two applications both the cases under Section 540 of the old Code (corresponding to Section 311 of the new Code) requesting the Trial Court to recall Mr. Mirchandani (the Seizing Officer) for further examination and to issue summons to two more witnesses, namely, Mr. K.K. Das, Assistant Collector of Customs and the Deputy Chief Officer (Assayer) of Mint Master, Bombay for examination either as prosecution witnesses or as court witnesses as cotemplated under the said provision.
The learned Judicial Magistrate passed two orders rejecting the applications which orders, on revision by the respondents were confirmed by the session 's Judge on being aggrieved by the said revisional orders, the Union of India (the first respondent herein) preferred two Criminal Revision Applications Nos.
97 and 98 of 1978.
The second respondent, namely, the State of Gujarat also preferred two other Criminal Revision Application Nos. 124 and 125 of 1978.
The High Court by its Common Judgment, though heavily criticised the conduct of the prosecution for its deplorable and lethargic attitude in not carefully and promptly conducting the proceedings allowed all the Criminal Revisions for the reasons assigned therein holding thus: "In view of what has been stated above, I accept the four petitions filed in this court by the Union of India, and the State of Gujarat, and direct the Union of India to examine the aforesaid three witnesses within a period of fortnight after the receipt of the order of this court to the trial court.
After the Union of India examines the aforesaid three witnesses as aforesaid, it will be open to the accused to cross examine all the witnesses examined by the Union of India before the learned Magistrate.
Feeling aggrieved by the judgment of the High Court, these two appeals are preferred by the appellant.
In this context, it is pertinent to note that the appellant has not directed any appeal against the judgment of the High Court in allowing the two other Revision Application Nos. 124 and 126 of 1978 filed by the Gujarat Government which were also allowed by the High Court.
716 The learned counsel appearing on behalf of the appellant vigorously challenged the legality of the impugned judgment inter alia contending that the High Court has gravely erred in allowing the second revision petitions filed by the respondent by ignorning the weighty reasons given by the Trial Magistrate and the Section Judge (before whom the first revision was filed) and thereby in permitting the respondent the Union of India to examine the three witnesses as prayed by it, notwithstanding that the case was pending before the Trial Court for considerable length of time and the defence argument was concluded and that the High Court, by the impugned order has permitted the prosecution to bolster up its case by filling up the lacuna and plugging the loopholes which if carried out would be detrimental and prejudicial to the appellant.
The next legal submission made on behalf of the appellant is that the entertainment of the second revision by the High Court is in violation of sub sections (2) and (3) of Section 397 of the new Code since the order passed by the Magistrate was an interlocutory order and that even assuming that it was not so, the second revision by the same affected party is not entertainable.
Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code).
Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading "Miscellaneous '.
But the present corresponding Sections 311 of the new Code is found among other Sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials '.
Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be ' before the word 'essential ' occurring in the old Section.
This section is manifestly in two parts.
Whereas the word 'used ' in the first part is 'may ' the word used in the second part is 'shall '.
In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it 'at any stage of enquiry ' trial or other proceedings ' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re examine any person already examined.
717 The second part which is mandatory imposes an obligation on the Court (1) to summon and examine, or (2) to recall and re examine any such person if his evidence appears to be essential to the just decision of the case.
The very usage of the words such as 'any court ', 'at any stage ', or 'of any enquiry, trial or other proceedings ', 'any person ' and 'any such person ' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way.
However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judically with circumpection and consistently with the provisions of the Code.
The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.
It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue.
But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides.
Nonetheless if either of the parties with holds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.
In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.
In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any 718 Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re examine any person in attendance though not summoned as a witness or recall and re examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
There are various other provisions in the new Code corresponding to the provision of the old Code empowering the court specified therein to recall any witness or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions.
A Judge under Section 236 (Section 310 old Code) or a Magistrate under Section 248(3) (Section 251 A(13) and 255 A old Code) is empowered to take evidence in respect of the previous convictions of the accused person concerned if he is charged with the previous conviction under sub section (7) of Section 211 and if he does not admit the previous conviction.
Under Section 367 (Section 375 old Code) if, when sentence of death passed by the Court of Sessions is submitted for confirmation to the High Court under Section 366(1) (Section 374 of the old Code), the High Court thinks that a further enquiry should be made into or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Session.
Under Section 391 (Section 428 of old Code) the Appellate Court while dealing with any appeal under Chapter XXIX, if thinks additional evidence to be necessary, may after recording its reasons either take such evidence itself or direct it to be taken by a subordinate Court as the case may be.
Under Section 463(2) (Section 533 old Code) if any Court of Appeal, Reference and Revision before which confession or other statement of an accused recorded or purporting to be recorded under Section 164 or Section 281 (Section 364 of the old Code) is tendered, or has been received in evidence, finds that any of the provisions of either such sections have not been complied with by the Magistrate recording the statement, the Court may notwithstanding anything contained in Section 91 of the Indian Evidence Act take evidence in regard to such non compliance and may, if satisfied that 719 such non compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such evidence.
Analogous to the above provisions of the Code of Criminal Procedure there are various provisions in the civil Procedure Code also enabling the civil Court to summon witnesses and examine them in the interest of justice.
Under Order X Rule 2 of the Civil Procedure Code, the Court at the first hearing of the suit or at any subsequent hearing may examine any party appearing in person or present in Court or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied.
Under Order X Rule 14 the Court may of its own motion summon as a witness any person including the party to the suit for examination and the said Rule is under the caption "Court may of its own accord summon as witnesses strangers to suit" and Order XVIII Rule 17 empowers the Court to recall any witness who has been examined and may subject to Law of Evidence for the time being in force put such questions to him as it thinks fit.
The powers of the Court under this Rule 17 are discretionary and very wide.
Besides the above specific provisions under the Cr.
P.C. and C.P.C. empowering the criminal and civil courts as the case may be, to summon and examine witnesses, a Judge in order to discover or to obtain proof of relevant facts is empowered under Section 165 of the Indian Evidence Act to exercise all the privileges and powers subject to the proviso to that section which power he has under the Evidence Act.
Section 540 of the old Code (Section 311 of the new Code) and Section 165 of the Evidence Act may be said to be complementary to each other and as observed by this Court in Jamatraj Kewalji Govani vs State of Maharashtra, ; "these two sections between them confer jurisdiction on the Judge to act in aid of justice.
" The second part of Section 540 as pointed out albeit imposes upon the Court an obligation of summoning or recalling and re examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case.
Though any party to the proceedings points out the desirability some evidence being taken, then the Court has to exercise its power under this provision either discetionary or mandatory depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the 720 requirements of justice.
In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps vs section, , which reads thus: ". . it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly . . . . . . . . . . . . . .
Counsel seek only for their client 's success; but the judge must watch that justice triumphs.
" The law is clearly expounded in the case of Jamatraj Kewalji Govani (referred to above) wherein Hidayatullah, J as he then was, while speaking for the Bench about the unfettered discretionary power of the court as envisaged under Section 540 of the Code has stated thus: "It is difficult to limit the power under our Code to cases which involve something arising ex improviso which no human ingenuity could foresee, in the course of the defence.
Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation.
Cases that go far are of course not quite right.
Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides . . . . . . . . . . . . . . . . . . . . . . .
It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it.
In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case.
If the court has acted without the requirements of a just decision, the 721 action is open to criticism but if the court 's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.
" The next important question is whether Section 540 gives the court carte blanche drawing no underlying principle in the exercise of the extra ordinary power and whether the said Section is unguided, uncontrolled and uncanalised.
Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means.
Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results.
Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
Fazal Ali, J in Rameshwar Dayal vs State of U.P., ; while expressing his views about the careful exercise of its power by the court has stated: "It is true that under Section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand.
The higher the power the more careful should be its exercise . . . .
The words, "Just decision of the case" would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play.
" In State of West Bengal vs Tulsidas Mundhra, at 207, it has observed: 722 "It would be noticed that this section confers on criminal Courts very wide powers.
It is no doubt for the Court to consider whether its power under this section should be exercised or not.
But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence.
The exercise of the power conferred by section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case.
" At the risk of repetition it may be said that Section 540 allows the court to invoke its inherent power at any stage, as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition.
Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced and until then the court has power to use this section.
The answer to the question like the one that has arisen in the present case is whether the court would be justified in exercising its power under Section 540 is found in Kewalji 's case (albeit).
In that case the appellant was prosecuted on two counts under Section 135(a) and (b) of the .
The appellant did not lead any evidence on his behalf but filed a written statement, claiming inter alia that no offence had been disclosed against him, since no witness had deposed that the contraband had been seized from him under the Act in the reasonable belief that they were smuggled goods.
The day after the statement was filed, the prosecution applied for examination of the customs officer who was incharge of the search as a court witness in the interest of justice.
The Magistrate ordered the examination of the officer under Section 540 of the Code rejecting the objections raised by the appellant.
Though an opportunity was given to the appellant to lead defence evidence, the appellant stated that he had nothing further to add and no evidence to lead.
The Trial Court convicted the appellant who being aggrieved by the judgment of the Trial Court preferred an appeal to the High Court which dismissed the appeal.
Before this Court it was contended that the evidence of the officer was improperly received.
That contention has been repelled by this court observing "This power is exercisable at any time and the Code of Criminal Procedure clearly so states" and thereafter concluded "it cannot be said that the Court had exceeded its jurisdiction in acting the second part of Section 540 of the Code of Criminal Procedure.
" Gajendragadkar, J. speaking for the Bench in Tulsidas Mundhra 723 (cited supra) has pointed out as follows: "Section 540 in terms applies at any stage of any enquiry, trial or other proceeding under this Code.
This section is wide enough to include a proceeding under section 207 A and so, it would be unreasonable to contend that the scheme of section 207 A makes section 540 inapplicable to the proceeding governed by section 207 A.
The power of the Court under section 540 can be exercised as much in regard to cases governed by section 207 A as in regard to other proceedings governed by the other relevant provisions of the Code." (It may be noted that section 207 A of the old Code in Chapter XVIII under the caption "Enquiry into cases triable by the court of Session or the High Court" dealt with the procedures to be adopted in proceedings instituted on police report and this provision is omitted in the new Code.) This Court in Kewalji 's case (albeit) held that Chapter XXI of Cr.
P.C. (old) under the heading "Of the Trail of Warrant cases by Magistrates" does not restrict the powers of criminal court under Section 540.
In Masalti vs State of U.P., ; wherein the defence did not opt to examine some witnesses who have been left out by the prosecution on the bona fide belief that those witnesses had been won over and the court also after due deliberation refused to exercise its power under Section 540; this Court while examining a submission that the Trial Court should have exercised its power under Section 540 and examined those witnesses expressed its opinion that "that is one aspect of the matter which we have to take into account" that is in considering whether the accused were prejudiced or not.
It has been held by this Court in Rajeswar Prasad Mora vs State of West Bengal & Anr.,[1966] 1 SCR 178 while dealing with the ample power and jurisdiction of the court in taking additional evidence as follows: "Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here.
We do not propose to do what the Legislature 724 has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances.
It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it.
The power must be exercised sparingly and only in suitable cases.
Once such action is justified, there is no restriction on the kind of evidence which may be received.
It may be formal or substantial.
" The above view has been reiterated in R.B. Mithani vs Maharashtra, AIR 1971 S.C. 1630.
The principle of law that emerges from the views expressed by this court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case.
What falls for determination now is whether the person indicated should be given an opportunity to rebut the evidence of the witness or witnesses summoned and examined under Section 540.
This question came for determination in Rameshwar Dayal 's case and this court answered that question thus: "It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the court to allow the appellant an opportunity to rebut the evidence of witnesses recommended under Section 540 Cr.
This argument, in our opinion, is based on a serious misconception of the correct approach to the cardinal principles of criminal justice.
Section 540 itself incorporates a rule of natural justice.
The accused is presumed to be innocent until he is proved guilty.
It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence.
The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by 725 the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim audi alteram partem . . . . . . . . . . . . . .
A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties as full justice cannot be done until both the parties are properly heard the condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced against him either at the trial or the appellate stage appears to us to be implicit under Section 540 of the Cr.
P.C." See also Kewalji 's case (cited above).
This was the view taken by various High Court such as in Channu Lal vs R., AIR 1949 All. 692; Rengaswami Naicker vs Muruga Naicker, AIR 1954 Mad. 169; Shugan Chand vs Emperor, AIR 1925 Lah 531 and The Queen vs Assanoolah, 13 SWR (Crl.
The views expressed in the above judgments of the various High Courts have been approved by this Court in Rameshwar Dayal 's case.
We are in full agreement with the above view of Fazal Ali, J and hold that whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him.
With this legal background let us now turn to the challenge posed by the appellant in these appeals.
The Trial Court and the First Revision Court rejected the request of the prosecution on three grounds, namely, first that the prosecution has attempted to fabricate evidence at a belated stage to fill up the lacuna in the prosecution case and secondly that the request of the prosecution for taking additional evidence was after the closure of the defence and thirdly a substantial prejudice would be caused to the appellant if the prosecution is allowed to adduce fresh evidence.
As pointed out by the High Court in its impugned order, gold, silver ornaments of the value of Rs.8,48,482 and currency notes of Rs.79,000 have been seized from the premises, searched on the strength of the search warrant issued by Shri K.K. Das.
What the appellant now contends is that the order of the High Court permitting the prosecution to recall one of the witnesses already examined and to summon two other new witnesses to prove 726 the foreign makings on the legadis is in violation of the principle underlying Section 540.
We waded through the entire records inclusive of the copies of depositions, search warrant and the application filed by the prosecution under Section 540 which are available in the file, forwarded by the High Court though those documents are not annexed with the SLP.
The prosecution filed the petition for examination of the three witnesses stating that foreign ingots (lagadis) have been sized from the possession of the appellant and that warrant for search of the premises of the appellant/accused was issued in this regard by the Assistant Collector of Customs, namely Shri K.K. Das and hence fresh evidence is necessary for a just decision of the case.
After perusing the depositions of the witnesses already examined that are found on the file, we think that the appellant/accused cannot be said to be prejudiced in any way by examination of these three witnesses.
PW 2 who was then working as Superintendent of Customs in the office of the Assistant Collector of Customs at Adipur during the relevant period has stated that Shri K.K. Das who was the then Assistant Collector of Customs issued the warrant dated 7.9.1971 authorising Shri Mirchandani, Superintendent of Customs, Adipur to search for the prohibited and dutiable goods and documents in the premises mentioned in the warrant.
It is elicited from the same witness in the cross examination that the gold ornaments were seized since the sizing authority doubted that they are smuggled gold and procured by contriving the Gold Control Act.
It is seen from the evidence of PW 3 that he and others inclusive of Superintendent Mirchandani went to the house of the appellant and they seized the gold ornaments Dhalia, that is, primary gold under Panchnama and search list Exts.
24 and 25.
Therefore, the appellant 's grievance that he has been taken by surprise on the request of the prosecution for taking fresh evidence; that the evidence sought to be obtained is only for filling up the lacuna and the judgment, impugned is prejudicial to him cannot be countenanced.
Of the three witnesses, permitted to be summoned and examined on the side of the Union of India, the Mint Master is only an assayer.
In our considered opinion, the facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court.
In the light of the proposition of law which we have derived in the preceding portion of the judgment there is no illegality in summoning the witnesses after the closure of the defence arguments.
It is seen from the order of the Trial Court that the argument of the prosecution has not yet begun.
Since we feel that any further observation of ours in justification of this order may prejudice the defence of the appellant 727 before the Trial Court, we are not inclined to discuss the evidence any further.
A decision of this Court in Mir Mohd. Omar and Other vs State of West Bengal, was relied upon to show that after the examination of the accused under Section 313 of the new Code (corresponding to Section 342 of the old Code) the prosecution should not move the Trial Judge for recalling a witness already examined, but the observation made in that decision has no application to the present case because in that case the said observation was made in a different context by this court while examining the plea of the prosecution in making corrections of the evidence already recorded under Section 272 of the Code and that decision does not deal with the ambit of Section 540 of the Code.
The other contention raised on behalf of the appellant is that the order of the Magistrate rejecting the application of the prosecution under Section 540 is not a revisable order under Section 397(1) as it being an interlocutory order and even if it is not so, the second revision by the same party i.e. Union of India is not entertainable in view of the statutory bar under Section 397(3) of the new Code as the Union of India has already availed the revision under Section 397(2) before the Session Judge.
We may straightaway reject this plea on the simple ground that the prosecution in the present case was launched under the old Code and as such the only provision of the old Code have to be applied as per Section 484 of the new Code.
The fervent plea of the appellant is though the prosecution was instituted under the old Code he should not be denied the benefit and advantage of Section 397(2) and (3) of the new Code.
We are afraid that we could accede to this inexorable request of the appellant for two reasons, namely, that the appellant has not challenged the maintainability of the second revision, filed and heard after the commencement of the new Code before the High Court, claiming advantage of Section 397(3) of the new Code and secondly he participated in the revision proceedings throughout under the old Code.
Having failed in the revision he has no justification to raise this point before this Court, especially when the proceedings under the old Code are saved by Section 484 of the new Code.
As far as the question whether an order under Section 540 of the old Code is an inerlocutory order or a final order, need not be gone into as that question does not arise in these proceedings.
We would like to point out before parting with this judgment that though the High Court by its impugned judgment directed the Union of India to 728 examine the three witnesses, in fact it has allowed all the four revision applications inclusive of the revision application Nos. 124 and 125 of 1978 filed by the State of Gujarat seeking the same prayer as that of the Union of India.
The appellant as we have pointed out in the prefatory portion of this judgment that that part of the judgment of the High Court allowing the two revisions filed by the State Government remains unchallenged.
Further we would like to point out that the High Court in its concluding paragraph of its judgment instead of using the words "I . direct" ought to have used the word "I . . permit".
For all the reasons stated above we hold that the judgment of the High Court does not suffer from any illegality or perversity calling for an interference at the hands of this Court and as such the appeals are liable to be dismissed as devoid of any merit.
However, we direct the Trial Court to afford a fair opportunity to the appellant/accused to cross examine the witnesses sought to be examined by the Union of India and also to lead rebuttal evidence if the appellant so desires.
Accordingly these two appeals are dismissed.
Y.L. Appeals dismissed.
|
Appellant 's business and residential premises were raided by the Customs Department as a result whereof gold ingots with foreign marks, gold ornaments, silver bricks, coins and a cash of Rs.79,000 was seized.
The Assistant Collector of Customs filed two separate complaints relating to the said incident against the appellant before the Judicial magistrate, one for violating the provisions of and the other under the Gold Control Act, 1968.
In the trial, after the close of evidence by both sides, prosecution as also defence, arguments were advanced on behalf of the accused appellant.
The prosecution at that stage before commencing its arguments filed two applications in both the cases, under Section 540 of the Old Code (corresponding to section 311 of the new Code) requesting the trial court to recall one witness viz., the Seizing officer, and issue summons to two more witnesses for examination either as prosecution witnesses or as court witnesses.
The trial magistrate rejected both the application and the revision petitions preferred by the respondents against that order failed before the Sessions Judge.
The Union of India thereupon preferred two revision applications before the High Court.
The State of Gujarat also preferred separate revision applications before the High Court.
The High Court allowed the revision petitions and directed examination of the three witnesses sought to be summoned.
Being aggrieved the appellant has filed these appeals after obtaining special leave against the decision of the High Court, in the revision applications filed by the Union of India.
No appeal has been filed against the order passed by the High Court in the revision applications filed before it, by the State of Gujarat.
The main contention of the appellant is that the High Court erred in allowing the second revision application in view of the provisions of section 397(3) of the new Code thus permitting the prosecution to fill up the lacuna and plug the loopholes in its case which is prejudicial to the appellant.
713 Dismissing the appeals, this Court, HELD: Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means.
The aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capricicously or arbitrarily.
Due care should be taken by the court while exercising power under this section and it must not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
[721B E] Whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interests of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him.
[725E] The Criminal court has ample power to summon any person as a witness or recall and re examine any such person even if the evidence on both sides is closed and the jurisdiction of the court and must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.
[724C D] The facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court.
[726G] Jamatraj Kewalji Govni vs State of Maharashtra, ; ; Rameshwar Dayal vs State of U.P., ; ; State of West Bengal vs Tulsidas Mundhra, at 207; Masalti vs State of U.P., AIR 1965 S.C.202; Rajeshwar Prasad Misra vs State of West Bengal and Anr.
, ; R.B. Mithani vs 714 Maharashtra, AIR 1971 S.C. 1630; Channu Lal vs R., AIR 1949 All 692; Rengaswami Naicker vs Muruga Naicker, AIR 1954 Mad 169; Shugan Chand vs Emperor, AIR 1925 Lah 531 and The Queen vs Assanoolah, 13 SWR (Crl.) 15, referred to.
Mir Mohd. Omar and Others vs State of West Bengal, , distinguished.
|
ivil Appeal No. 2597 of 1983.
From the Judgment and Order dated the 27th October, 1980 of the Allahabad High Court in Second Appeal No. 567 of 1973.
K.V. Vishwanathan, S.R. Setia, K.V. Venkataraman and C.S. Vaidyanathan for the Appellants.
Yogeshwar Prasad, P.K. Bajaj, Ms. Rachna Gupta, Ms. Rani Chhabra for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal is from the Judgment of the Allahabad High Court dated 27.10.1980 in Second Appeal No. 567 of 1973 allowing the appeal and decreeing the suit of the first respondent for specific performance of contract dated 5.4.1966, wherein it was stipulated that the defendant No. 1 (second respondent) had executed a fictitious sale deed dated 2.9.1966 for Rs.1,000 in favour of defendant No. 2 Kalawati, in respect of half of the suit chak and another sale deed dated 21.12.1966 for Rs.2,000 in favour of defendant No.3 Mithilesh Kumari.
Accordingly the plaintiff (first respondent) prayed for directing the defendants 2 & 3 (appellants herein) to execute the required sale deed in case it was not possible for the court to get it executed by defendant No. 1.
The first respondent Feteh Bahadur sued the second respondent 703 Jang Bahadur and the appellants in O.S. No. 278 of 1970, for specific performance of his contract whereunder the second respondent Jang Bahadur had agreed to sell his chak No. 249 admeasuring 10 bighas, 12 biswas and 10 biswansis to the first respondent of Rs. 5,000 out of which Rs. 4,000 were paid and the balance Rs. 1,000 to be paid within 5 years whereafter second respondent Jang Bahadur was to execute a sale deed in favour of the first respondent Fateh Bahadur.
The Court of Munsif, Fatehpur decrced the suit only for recovery of Rs. 4,850 plus pendent lite and future interest on Rs. 4,000.
Fateh Bahadur 's apeal therefrom having been dismissed by the Civil Judge he preferred second appeal No. 567 of 1973 in the High Court of Judicature at Allahabad, contending that the transfers in favour of defendant NOs.
2 & 3, the appellants herein, by Jang Bahadur were in contravention of the provision of Section 168 A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) hereinafter referred to as `the Act ', and thus were void and that the view taken by the lower court that the title of Jang Bahadur came to an end since void transfers were made in favour of appellants Kalawati and Mithlesh Kumari, and thus, Jang Bahadur was no longer the holder of any title which could be conveyed to Fateh Bahadur was erroneous in law.
Reliance was placed on a decision of the High Court in Parmanand vs Board of Revenue, U.P., Allahabad reported in The defendants 2 & 3 who are appellants herein, contended that the two transfers made by Jang Bahadur in their favour were not hit by the provision of Section 168 A of the Act inasmuch as the transfers were of a portion of the shares of Jang Bahadur in the plot in dispute.
It was urged that for a transfer being hit by provision of Section 168 A of the Act the same should be in respect of a specific piece of land and not a share in a holding.
Reliance was placed on a decision of the same High Court in Bibhuti vs Kashi Ram, 1977 AWC 491.
It was not disputed that the area of land transferred under the two sale deeds in favour of appellants Kalawati and Mithlesh Kumari amounted to fragments under the Act.
The High Court considered the question as to whether a transfer which had been made not of the entire share of a holder in a holding but of a fragment would be hit by the provisions of Section 168 A of the Act and took the view that the two transfers made in favour of Kalawati and Mithlesh Kumari were clearly hit by the provisions of Section 168 A of the Act in view of the provisions of sub clause (2) of that section and that the benefit of Kalawati and Mithlesh Kumari only if the sale deeds executed in their favour could be looked into and as those sale deeds were void in the 704 eye of law it would be presumed as if no legal transfer took place in their favour and there being no legal transfer no question of applicability of Section 43 of the Transfer of Property Act arose.
As Jang Bahadur executed the agreement of sale in favour of Fateh Bahadur and as the sale deeds in favour of Kalawati and Mithlesh Kumar were held to have been void, Fateh Bahadur, according to the High Court, was entitled to a decree of specific performance against Kalawati and Mithlesh Kumari on payment of Rs. 1,000 within a period 2 months from the date of receipt of the record in the trial court failing which the court would execute the sale deed in favour of the plaintiff.
The appeal was accordingly allowed and the suit decreed as above.
Mr. K.V. Vishwanathan, the learned counsel for the appellants submits that the sale made by Jang Bahadur to the 2nd appellant Kalawati on 2.9.1966 being hit by the provisions of Section 168 A of the Act the subject matter of transfer i.e. 5 bighas, 6 biswas and 5 biswansis of Plot No. 249 in village Kichakpur got vested in the Government and the interest of Jang Bahadur in that part of the holding stood extinguished on the date of transfer i.e. 2.9.1966; that the sale made to Kalawati being void, Jang Bahadur was left only with 5 bighas, 6 biswas and 5 biswansis in Plot No. 249 of village Kichakpur.
Jang Bahadur having transferred that whole or entire portion to the first appellants Mithlesh Kumari by sale deed dated 21.12.1966 such transfer being a transfer of the whole area of the Bhumidhar it would be covered by the proviso under Section 168 A and as such, the sale would not be hit by the provisions of Section 168 ; that Sections 166, 167,168, 168 A and 189 (aa) form a scheme and if the sale is hit by the provision of 168 A, the result would be that on the date of sale, the interest of the vendor in the subject matter of sale would stand extinguished under Section 189 (aa) and hence 189 (aa) is the provision which extinguishes the right of the vendor in that part of the holding which he contracted to sell in violation of Section 168 A and that the interest of the transferee would stand extinguished under Sections 167 & 168 when the Gaon Sabha or the landholder ejects the transferee from the premises.
According to counsel, harmoniously construing Sections 168 and 189(aa), it would be amply clear that while 189(aa) extinguishes the interest of the vendor on that part of the property which he contracted to sell in violation of 168 A on the date of transfer itself, the interest of the transferee would be extinguished on ejectment from the suit premises; and the High Court erred in directing the appellants to specifically execute the sale deed in favour of the first respondent.
Ms. Rachna Gupta, the learned counsel for the first respondent.
705 submits that as the sale deeds in favour of the two appellants have been held to be void the High Court rightly decreed the suit for specific performance against them on payment of the balance or Rs.1,000 and that he having been in possession of the land and the second respondent 's fragmented sales having been found to be void, even if the land would vest in the State, the first respondent would not be divested automatically and the State has to seek possession in accordance with the law.
The only question that falls for determination is what would be the effect of the two fragmented sales in favour of the appellants.
In other words, whether as a result of the two sales the entire holding of the bhumidhar Jang Bahadur would vest in the State or only the half in the first sale would vest in the State and the remaining half would thereafter constitute the whole in the hand of the bhumidhar Jang Bahadur and the second sale being of the whole of his remnant holding would be valid so as to convey and transfer right to the vendee Mithlesh Kumari.
There is no dispute that the land of 10 bighas, 12 biswas and 10 biswansis was itself a fragment as defined in clause 8(a) of Section 3 of the Act being less than 3.125 acres.
There is also no dispute that the suit land is in a consolidated area and that the appellants were not tenure holders.
It would, therefore, follow that the two halves sold to the appellants were fragments of a fragment.
The Act was passed as it was considered expedient to provide for the abolition of the Zamindari system which involved intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquistion of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
The original Act did not define fragment.
The definition of `fragment ' was added by Section 2 of the U.P. Act XVIII of 1956 with a view to prevent fragmentation and promote consolidation of holdings in order to avoid uneconomic units.
Sections 152 to 175 of the Act dealt with transfer.
Section 152 provided: "The interest of a bhumidhar with tranferable rights shall subject to the conditions hereinafter contained, be transferable.
(2) Except otherwise expressly permitted by this Act or 706 any other law for the time being in force, the interest of a bhumidhar with non transferable rights shall not be transferable.
(3) A bhumidhar referred to in sub section (2) may, in such circumstances as may be prescribed, mortgage, without possessions his interest in his holding, as security for a loan taken from the State Government by way of taqavi, or from a cooperative society or from the State Bank of India, or from any other bank, which is a scheduled bank within the meaning of clause (e) of Section 2 of the , or from the Uttar Pradesh State, Agro Industrial Corporation Limited, and may also transfer by way of gift, the interest in his holding, except the part thereof which has been so mortgaged, to a recognised educational institution for any purpose connected with instructions in agriculture, horticulture and animal husbandry.
" The interests of sirdar or asami were originally not transferable as Section 153 said: "Except as expressly permitted by this Act, the interest of a sirdar and asami shall not be transferable.
" Sections 154 to 170 dealt with transfer of land by bhumidhar.
Section 166 originally provided that any transfer made by or an behalf of a sirdar or asami in contravention of the provisions of that chapter was to be void.
Section 166 has undergone amendments.
The section was substituted by the present section by U.P. Act No. XX of 1982 with effect from 3.6.1981.
The present section says: "Every transfer made in contravention of the provisions of this Act shall be void.
" What was the position in 1966 on the dates of the instant sales has to be known and correctly applied.
Section 167 earlier provided for the consequences of void transfers in the following language: 167.
(1) Where a sirdar or asami has made any transfer in contravention of the provision of this Act, the transferee and every person who may have thus obtained possession of the whole or part of the holding shall be liable to ejectment on the suit of the Gaon Sabha or the landholder, as the case may be.
(2) A decree for ejectment under sub section (1) may direct the ejectment of the sirdar or asami from the whole or part of the holding as the Court may, having regard to 707 the circumstances of the case, direct." This section was also substituted by the same Act No. XX of 1982 with effect from 3.6.1981.
Section 167 now says: "167.(1) the following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely (a) the subject matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances; (b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; (c) the transferee may remove other movable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.
(2) Where any land or other property has vested in the State Government under sub section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom.
For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.
" The position before the amendment has been shown to us to enable us to apply the relevant law to the facts of the case.
Section 168 which dealt with consequences of ejectment under Section 167 has been omitted by U.P. Act No. VIII of 1977 with effect from 28.1.1977.
What was the provision in 1966 is not clear to us.
We are told that the section stood as follows in 1966: "section 168.
Consequences of ejectment under section 167.
All the rights and interests of the sirdar and asami upon ejectment in a suit under section 167 in the holding (or part thereof) or in any improvement made therein or to get compensation for such improvements shall be extinguished.
" But we have not been shown the enactment.
708 Section 168 A was added by Section 9 of U.P. Act XVIII of 1956, subject to the saving contained in Section 23 thereof.
This section now says: "168 A. Transfer of fragments.
Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure holder the whole or so much of the plot in which person has bhumidhari rights, which pertains to the fragment is thereby transferred.
(2) The transfer of any land contrary to the provisions of sub section (1) shall be void.
(3) When a bhumidhar has made any transfer in contravention of the provisions of sub section (1) the provisions of Section 167 shall mutatis mutandis apply." Section 168 A has undergone amendment by Section 2 of U.P. Act XXVIII of 1961 when for the words "whole of the plot to which the fragment pertains is hereby transferred", the present words "the whole or so much of the plot in which the person has bhumidhari rights which pertains to the fragment is hereby transferrd" were substituted.
This amendment would not affect the instant case.
Some words between `167 ' and `shall ' were omitted by U.P. Act XIII of 1977, with effect from 28.1.1977.
It may be necessary to know what those were.
Sub section (1) of Section 168 A begins with a non obstante clause and it over rides the provisions of any law for the time being in force.
The expession `no person ' would include the bhumidhar.
The object of the section is to prevent fragmentation of land situated in a consolidated area and transfers that would result in fragmentation or further fragmentation shall be void and to such transfers Section 167 will mutatis mutandis be applicable.
This section comes into play only when a fragment situated in a consolidated area is transferred.
If transfer of a fragment is made in favour of tenure holder who has a plot contiguous to the fragment, the purpose of law is not defeatd inasmuch as it will be consolidated with the contiguous plot of the transferee.
When the land held by a person in a consolidated area is already a fragment then as was provided previous to the amendment in 1961 the whole of the plot to which the fragment pertained was to be 709 transferred.
After the amendment, the invalidity and applicability of Section 167 is limited to a case where the transfer is not in favour of any such tenure holder and to the whole or so much of the plot in which the person has bhumidhari rights which pertains to the fragment is thereby transferred.
If the transferor had bhumidhari rights on the whole of the fragment the whole has to be transferred.
If the person has bhumidhari rights only in a part of the plot that part on which he has bhumidhari rights can be transferred.
The part on which the person has not bhumidhari rights is not covered by the provisions not because that would not result in further fragmentation but because he had transferable bhumidhari rights only on that portion and not on the other portion.
There is no doubt that under sub section (2) transfer of any land countrary to the provisions of sub section (1) shall be void and under sub section (3) the provisions of section 167 shall mutatis mutandis apply.
Section 189 deals with extinction of the interest of a bhumidhar with transferable rights and Section 190 deals with extinction of the interest of a bhumidhar with non transferable rights.
Section 189 earlier provided: "189.
The interest of a bhumidhar in his holding or any part thereof shall be extinguished (a) when he died intestate leaving no heir entitled to inherit in accordance with the provisions of this Act; (b) when the land compromised in the holding has been acquired under any law for the time being in force relating to the acquisition of land, or (c) when he has been deprived of possession and his right to recover possession is barred by limitation" The words "bhumidhar with transferable rights" were substituted in the first sentence by U.P. Act XVIII of 1977 with effect from 28.1.1977.
Clause (aa) was added by Section 50 of U.P. Act XXXVII of 1958, so that the amended section now reads: "189.
Extinction of the interest of a bhumidhar with transferable rights.
The interest of a bhumidhar with transferable rights in his holding or any part thereof shall be extinguished 710 (a) when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act; (aa) when the holding or part thereof has been transferred or let out in contravention of the provisions of this Act; (b) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land; or (c) when he has been deprived of possession and this right to recover possession is barred by limitation.
" The substitution of the words "bhumidhar with transferable right" for the word "bhumidhar" would not make any difference when the bhumidhar had transferable rights but would make a difference where the bhumidhar has also lands with non transferable rights.
Thus, under the amended provisions the interest of a bhumidhar with transferable rights in his holding or in part thereof shall be extinguished when the holding or part thereof with bhumidhari rights has been transferred or let out in contravention of the provisions of the Act.
In other words when he had bhumidhari rights on the entire holding and the same is transferred or let out in contravention of the provisions of the Act his interest shall be extinguished.
If he had bhumidhari right only on a part thereof and it has been transferred or let out in contravention of the provisions of the Act his interest in bhumidhari right in that part shall be extinguished.
The reason behind the provisions to make fragmentation is the need to prevent further fragmentation if the bhumidhar with his bhumidhari rights over a fragment tries to transfer the fragment, his right over the fragment is extinguished.
Will the same by the result if instead of transferring the entire fragment he transfers a fragment of a fragment? If only a fragment of a fragment is so transferred would the whole fragment be vested in State? Applying the law to the facts of the case in hand we find that the bhumidhar Jang Bahadur 's land admeasuring 10 bighas, 12 biswas and 10 biswansis was itself admittedly a fragment.
Jang Bahadur entered into an agreement to sell the land on 5.4.1966 and the first respondent Fateh Bahadur on payment of advance of Rs. 4000 is stated to have had possession of the land.
That sale would attract the provisions of Section 168 A if it resulted in transfer of the fragment.
The sales to the appellants.
Kalawati defendant No. 2 was dated 2.9.1966 and to Mith 711 lesh Kumari defendant No. 3 was dated 21.12.1966.
These two sales would be covered by the old provisions of sections 166 and 167, which sections did not deal with the case of bhumidhar but only by sirdar or asami.
But Section 168 A would be attracted and the provisions of Section 167 would mutatis mutandis be applicable.
The High Court did not examine the facts of the case in light of the laws prevailing at the time of the sales.
If the sales were in contravention of the provisions of law so as to entail invalidity of the sale and vesting of the land sold in the State, the question whether in such a case specific performance of the contract would be justified or not would also be germane.
While holding both the sales to the appellants to have been void, the High Court did not take into consideration the exception as to transfer of "the whole or so much of the plot in which the person has bhumidhari rights.
" The High Court also failed to notice and apply clause (aa) of Section 189 which was added by Section 50 of U.P. Act XXXVII of 1958 and was applicable to the case.
Festinatio justitiae est noverea informateeni.
(Hob. 97) Hasty justice is stepmother of misfortune.
Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita judicare vel respondere.
It is unjust to decide or respond to any particular part of a law without examining the whole of the law.
But we are in time constraint.
By consensus with the learned counsel for the parties, we set aside the impugned order and remand this case to the High Court for disposal in accordance with the law applicable to the facts of the case expeditiously.
The appeal is disposed of accordingly.
We leave the parties to bear their own costs.
V.P.R. Appeal disposed of.
|
The respondent No. 1 sued the second respondent (defendant No. 1) and the appellants (defendant Nos. 2 and 3) for specific performance of a contract whereunder the second respondent had agreed to sell his lands to the first respondent for Rs. 5,000 out of which Rs.4,000 were paid, and the balance Rs.1,000 was to be paid within 5 years whereafter the second respondent was to execute a sale deed in favour of the first respondent.
The Munsif decreed the suit only for recovery of Rs,4,850 plus pendente lite and future interest on Rs.4,000 and this order was confirmed by the Civil Judge by dismissing the appeal of respondent No.1.
A second appeal was preferred to the High Court by respondent N. 1 contending that the transfers in favour of the appellants, by respondent No. 2 were void being in contravention of Section 168 A of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
The appellants contested the appeal contending that for a transfer being hit by Section 168 A of the Act should be in respect of a specific piece of land and not a share in a holding and that the transfers were of a portion of the shares of respondent No. 1 in the disputed plot.
The High Court allowed the appeal holding that the two transfers made were clearly hit by the provisions of Section 168 A(2) of the Act and that the benefit of Section 43 of the Transfer of property Act could not be availed of by the appellants as the sale deeds were void in the eye of law.
700 The appellant in their appeal to this Court contended that the sale made by respondent No. 2 to the 2nd appellant being hit by the provisions of Section 168 A of the Act, the subject matter of transfer got vested in the Government and the interest of respondent No. 2 in that part of the holding stood extinguished on the date of transfer and that the sale being void, he was left only with the subject matter of transfer, and that the respondent No. 2 having transferred that whole portion to the first appellant by sale deed such transfer being a transfer of the whole area it would be covered by the proviso under Section 168 A and as such, the sale would not be hit by the provisions of Section 168 A.
The first respondent contended that as the sale deeds in favour of the two appellants have been held to be void, the High Court rightly decreed the suit; that he having been in possession of the land and the second respondent 's fragmented sales having been found to be void, even if the land would vest in the State, the first respondent would not be divested automatically and the State has to seek possession in accordance with the law.
On the question as to what would be the effect of the two fragmented sales in favour of the appellants, setting aside the order of the High Court and remanding the matter, this Court, HELD: 1.
The U.P. Zamindari Abolition and Land Reforms Act was passed as it was considered expedient to provide for the abolition of the Zamindari system which involved intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
[705E F] 2.
The original Act did not define fragment.
The definition of 'fragment ' was added by Section 2 of the U.P. Act XVIII of 1956 with a view to prevent fragmentation and promote consolidation of holdings in order to avoid uneconomic units.
[705F G] 3.
The object of the section 168 A(1) was to prevent fragmentation of land situated in a conolidated area and transfers that would result in fragmentation or further fragmentation shall be void and to such transfers, Section 167 will mutatis mutandis be applicable, when a fragment situated in a consolidated area is transferred.
If transfer of a fragment is made in favour of tenure holder who has a plot contiguous to the fragment, the purpose of law is not defeated inasmuch as it will be 701 consolidated with the contiguous plot of the transferee.
When the land held by a person in a consolidated area is already a fragment then as was provided previous to the amendment in 1961 the whole of the plot to which the fragment pertained was to be transferred.
[708F 709A] 4.
After the amendment, the invalidity and applicability of Section 167 is limited to a case where the transfer is not in favour of any such tenure holder and to the whole or so much of the plot in which the person has bhumidhar rights which pertains to fragment is thereby transferred.
If the transferor has bhumidhari rights on the whole of the fragment the whole has to be transferred.
If the person has bhumidhari rights only in a part of the plot that part on which he has bhumidhari rights can be transferred.
The part on which the person has not bhumidhari rights is not covered by the provisions not because that would not result in further fragmentation but because he had transferable bhumidhari rights only on that portion and not on the other portion.
[709A C] 5.
The substitution of the words "bhumidhar with transferable rights" for the word "bhumidhar" would not make any difference when the bhumidhar had transferable rights but would make a difference where the bhumidhar had also lands with non transferable rights.
[710C D] 6.
Under the amended provisions the interest of a bhumidhar with transferable rights in his holding or in part thereof shall be extinguished when the holding or part thereof with bhumidhar rights has been transferred or let out in contravention of the provisions of the Act.
In other words, when he had bhumidhar rights on the entire holding and the same is transferred or let out in contravention of the provisions of the Act his interest shall be extinguished.
If he had bhumidhari rights only on a part thereof and it has been transferred or let out in contravention of the provisions of the Act his interest in bhumidhari rights in that part shall be extinguished.
The reason behind the provision to make fragmentation is the need to prevent further fragmentation if the bhumidhar with his bhumidhari rights over a fragment tries to transfer the fragment, his right over the fragment is extinguished.
[710D E] 7.
In the instant case, the bhumidhar respondent No. 2 's land measuring 10 bighas, 12 biswas and 10 biswansis was a fragment.
He entered into an agreement to sell the land on 5.4.1966 and the first respondent on payment of advance of Rs.4,000 is stated to have had possession of the land.
That sale would attract the provisions of Section 702 168 A, if it resulted in transfer of the fragment.
The sales to the appellant No. 1 was dated 2.9.1966 and to appellant No. 2 was dated 21.12.1966.
These two sales would be convered by the old provisions of sections 166 and 167, which section did not deal with the case of bhumidhar but only by sirdar or asami.
But section 168 A would be attracted and the provisions of Section 167 would mutatis mutandis be applicable.
[710G 711B] 8.
The High Court did not examine the facts of the case in light of the laws prevailing at the time.
Festination justiate est noverea informateeni.
Hasty justice is step mother of misfortune.
Injustuim est nisitota lege inspecta, de una aliqua ejus particula proposita judicare vel respondere.
It is unjust to decide or respond to any particular part of a law without examining the whole of the law.
[711B, 711D E]
|
: Criminal Appeals Nos. 251 & 307 of 1990.
From the Judgment and Order dated 11.8.1989 of the Allahabad High Court in Crl.
A. No. 1239 of 1978.
687 S.C. Maheshwari, Y.C. Maheshwari, Miss Sandhya Goswami and P.K. Chakraborty for the Appellants.
Prithvi Raj, Prashant Chaudhary and Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The appellants in criminal appeal No. 251 of 1990 were accused Nos. 3 and 4 before the trial court, namely, the VIIth Additional Sessions Judge, Meerut, whereas the appellants in criminal appeal No. 307 of 1990 were accused Nos. 1 and 2 before the said court.
These four appellants along with one Braham Singh (since acquitted) took their trial for offences under Sections 302 read with section 149 IPC and 323 read with section 149 IPC.
Besides, these four appellants were also charged for offence under section 147 IPC whilst Braham Singh under section 148 IPC.
The trial court, on appreciation of the evidence adduced by the prosecution, found the 5th accused, Braham Singh, not guilty of any charges and acquitted him.
However, these four appellants were found guilty of offences under section 302 read with section 34 IPC and under section 323 read with section 34 IPC and sentenced to undergo imprisonment for life and to six months ' rigorous imprisonment respectively.
The High Court on appeal preferred by all the appellants, for the reasons mentioned in its judgment, held that the prosecution has not made out a case punishable under section 302 read with section 34 IPC but only under section 304, Part II, IPC read with section 34 and consequently set aside the conviction and the sentence imposed for the offence under section 302 read with section 34 IPC and instead convicted them under section 304 Part II, read with section 34 IPC and sentenced each of them to undergo rigorous imprisonment for a period of five years.
The conviction of all the appellants under section 323 read with 149 IPC was altered into one under section 323 read with 34 IPC and the sentence of six months ' rigorous imprisonment was retained.
The facts of the case which have given rise to the present appeals as unfolded by the evidence, can be briefly stated thus: Appellants in criminal appeal No. 307/90 are brothers.
Similarly appellants in criminal appeal No. 251/90 and Braham Singh (who was arrayed as accused No. 5 before the trial court) are also brothers among themselves.
PWs 1 and 5 are the brother and wife respectively of one Bali 688 (the deceased herein).
PW 1 and the deceased Bali had a common 'Chak '.
The appellants belonged to a village named Kaulbhandora, which is at a distance of about four furlongs from the Chak, situated just adjacent to the road and 'Rajbaha '.
The appellants used to take the 'Rajbaha ' Patri in auction for grazing their cattle.
It seems that there was strained relationship between the appellants and the deceased for a considerable length of time.
According to the prosecution the cattle belonging to the appellants, when allowed to enter the 'Patri ' (grazing field) used to stray into the field of Bali and cause damage to the standing crops.
Although Bali made a protest, it did not yield any result.
On account of this, there was simmering feeling between the parties.
Added to that, there were certain criminal prosecutions between the parties, pending for over a period of two years.
On 23.12.1976 at about 1 p.m. when Bali along with PWs 1 and 5 was in his field, these appellants each armed with a Lathi along with Braham Singh armed with a 'Ballam ' came there.
On the exhortation of Chandroo, all other appellants and Braham Singh attacked Bali with their respective weapons and caused injuries to him.
While PW 3 tried to save her husband, she too was injured.
When PW 1 along with PWs 3 and 4 rushed to the scene of occurrence, the assailants took to their heels.
Injured Bali was removed to the Hastinapur hospital for treatment.
PW 6, the medical officer attached to the said hospital examined Bali and found on his person as many as fifteen injuries of which injury No. 15 was a stab wound and most of the other injuries were contusions.
PW 6 prepared a medical report, Exhibit Ka 6 and on the same day he examined PW 5 and found on her person 2 contusions in respect of which he prepared the injury report (exhibit Ka 7).
However, Bali succumbed to his injuries on the same day at about 7.45 p.m. PW 1 lodged a written report (exhibit Ka 1) at about 8 p.m. before PW 2 a Head Constable attached to the Hastinapur Police Station.
PW 2 prepared Exhibit Ka 2 on the basis of exhibit Ka 1 and made G.O. entry i.e. exhibit Ka. 3.
PW 9, the then sub Inspector of Police attached to the Police Station took up the investigation and examined PW 1 and others.
He held the inquest over the dead body of the deceased and prepared exhibit Ka 11, PW 5 could not make any statement as she was unconscious.
The PW 9 inspected the spot and prepared a site plan exhibit Ka. 14 and seized certain material objects including a piece of wood and blood stain earth.
PW 7, yet another Medical Officer, conducted the post mortem examination on the dead body of the deceased Bali on 24.12.1976 and found a number of injuries, as noted in his post mortem report 689 exhibit Ka 8.
According to PW 7, the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased.
PW 9, after completing the investigation, laid the chargesheet against all the five accused.
Though the appellants admitted the earlier criminal prosecutions between the parties, totally denied their complicity with the offence of murder.
Of the witnesses examined, PWs 4 and 5 corroborated the testimony of PW 1 but PW 3 was declared hostile as this witness mentioned only the name of the first appellant and denied participation of rest of the appellants and Braham Singh and also the presence of the ocular witnesses except PW 5.
The trial court, however, found accused Nos. 1 to 4 (all the appellants herein) alone guilty of the offence, convicted and sentenced them as aforementioned and acquitted the 5th accused Braham Singh.
On appeal, the High Court accepted the testimony of PWs 1, 4 and 5 holding that they are giving a consistent version in regard to the participation of the appellants in attacking the deceased and agreed with the finding of the trial court that these appellants were responsible for inflicting the injuries on the deceased Bali and PW 5.
But coming to the nature of the offence perpetrated on the deceased, the High Court held the offence as one punishable under section 304 Part II but not under section 302 IPC and consequently altered the conviction and the sentence as indicated above while retaining the conviction under section 323 against all the appellants for causing injuries to PW 5.
Hence, the present appeals are directed by the appellants who were accused Nos. 1 to 4 before the trial court.
Mr. Maheshwari, Senior Counsel appearing on behalf of the appellants in both the appeals, forcibly contended that since both the courts below have overlooked the glaring infirmities and ignored the material evidence supporting the defence theory as well as the manifest errors appearing in the evidence, this Court would be justified in interfering with the concurrent findings of both the courts, otherwise substantial injustice would be caused to the appellants.
According to the learned counsel, the prosecution has shifted the scene of occurrence, changed the time of occurrence, unduly delayed the registration of the case and put forth a false explanation for its tardiness both in the matter of registration and investigation of the case; that PW 9; the investigating officer, has deliberately feigned ignorance of the receipt of exhibit Kha 1 in order to shield his indolence and failure in immediately and promptly taking up the investigation; that PW 1 and 4 in order to ventilate their grievance which they were bearing against the appellant 's party on account of the previous 690 animosity and simmering feelings that existed between them and to settle their personal scores; that the credibility of these two witnesses is impaired and their testimony is successfully impeached.
The learned defence counsel further states that a thorough and strict scrutiny of the evidence furnished by PWs 1, 3 and 4 shows that the entire prosecution story in concocted, fanciful and incredible and, as such, it deserves to be rejected with scorn and that both the courts below have completely pretermitted all the pitfalls in the prosecution and have summarily disposed of the case without subjecting the evidence under the usual test of scrutiny.
Before we analyse the above contentions with reference to the evidence adduced by the prosecution and see whether the prosecution case suffers from any illegality and the conclusion of the courts below from perversity, we shall deal with the scope of interference of this Court in an appeal arising from concurrent findings of fact.
This Court in The State of Madras vs A. Vaidyantha Iyer, ; at 588 while interpreting the scope of Article 136 of the Constitution has ruled as follows: "In article 136 the use of the words "Supreme Court may in its direction grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India" shows that in criminal matters no distinction can be made as a matter of construction between a judgment of conviction or acquittal.
Having made the above rule, it has been said that the interference by the Supreme Court will be called for even with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.
Jaganmohan Reddy, J. agreeing with the view taken in Vaidyanatha Iyer 's case has observed in Himachal Pradesh Administration vs Shri Om Prakash, thus: "In appeals against acquittal by special leave under Article 136, this Court has undoubted power to interfere with the findings of fact, no distinction being made between judgments of acquittal and conviction, though in the case of acquittals it will not ordinarily interfere with the appreciation of evidence or on findings of fact unless the High Court "acts perversely or otherwise improperly".
691 Again in Balak Ram vs State of U.P., ([1975] 3 SCC 219 at page 227) this Court held as follows: "The powers of the Supreme Court under Article 136 are wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
" In Arunachalam vs P.S.R. Sadhananthan. ; at page 487 this Court while reinstating the principles laid down in Vaidyanatha Iyer & Om Prakash, cases, has stated thus: "The power is plenary in the sense that there are no words in Article 136 itself qualifying that power.
But the very nature of the power has led the Court to set limits to itself within which to exercise such power.
It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arise or a decision shocks the conscience of the Court.
But within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction, if the High Courts in arriving at those findings, has acted "perversely or otherwise improperly".
See also State of U.P. vs Hamik Singh & Ors., and State of U.P. vs Pheru Singh & ORs.
, [1989] Supp. 1 SCC 288 to which one of us (section Ratnavel Pandian, J.) was a party.
Bearing the above proposition of law, we shall now examine the evidence and see whether the concurrent findings of fact call for an interference.
With regard to the place of occurrence, learned counsel drew our attention to the first information report and to the evidence of the witnesses including that of PW 9, and pointed out that the prosecution had changed the scene of occurrence.
In the first information report under column 'place of occurrence ', it is mentioned as 'Jungle Village, Ganeshpur '.
PW 1 in his cross examination has admitted that the 'Chak ' in which the murder took place is situated in the jungle of village Bhandora and not in the jungle of village Ganeshpur.
A suggestion, though denied, has also been made by the defence to PW 1 that 692 they have changed the place of occurrence from Ganeshpur to Bhandora.
PW 2 who was then the Head Constable attached to Hastinapur Police Station, states that on submission of exhibit Ka 1 by PW 1 he prepared a chik report exhibit Ka 2 and that he mentioned the place of occurrence as jungle of village Ganeshpur only on the basis of the written report.
It is the evidence of PW 9 that he reached village Bhandora and did spot inspection thereby admitting that the place of occurrence was village Bhandora and not Ganeshpur.
a scrutiny of exhibit KA 1 shows that PW 1 did not give the specific place of occurrence in that earliest document.
It appears from the evidence of PWs 1 and 9 as well as the entry under column No. 2 of the First Information Report that the prosecution was probing in darkness even in respect of the place of occurrence.
Even in exhibit Ka 3 a memo prepared by PW 9 for seizure of the blood stained earth, the place of occurrence is not mentioned.
Hence, we hold that the submission made on behalf of the defence even at the threshold that the place of occurrence is changed or at any rate not specifically fixed, cannot be said to be without force.
We shall then scrutinise the evidence with regard to the time of occurrence.
According to the prosecution, the occurrence took place at about 1.00 p.m. on 23.12.1976.
Immediately, after the occurrence, the injured Bali & PW 5 were brought to the hospital which is at a distance of three miles from the scene of occurrence.
exhibit Kha 1 was prepared by the Medical Officer i.e. PW 6 on examing Bali.
exhibit Ka 7 is a report prepared by medical officer PW 6 relating to the injuries found on PW 5.
This document exhibit Ka 7 reveals that PW 5 was examined at about 3.30 p.m.
Therefore, the injured Bali could have been examined by PW 6 earlier to 3.30 p.m.
It may be mentioned here what PW 1 has stated that they reached the hospital approx, between 2 and 3 p.m.
The medical officer has opined that the injuries found on the injured could have been caused within six hours.
When a specific question had been addressed to this medical officer (PW 6) as to whether the injuries could have been caused at about 5/6 a.m. he would say: "It could have been caused at 8 'O clock".
We are not rejecting the case of the prosecution on this admission of the medical officer stating that the probable time of the causation of the injuries could be 8 a.m.
But the question would be, even admitting that the occurrence took place at about 1 p.m., whether the prosecution convincingly and satisfactorily established the guilt of the appellants by leading cogent and reliable evidence.
693 The next important point for determination is whether the case has been promptly registered and the investigation proceeded without causing undue delay thereby giving no room enabling the prosecution party to deliberately concoct a case against these four appellants.
It transpires from the evidence of PW 6 that he sent the information under exhibit Kha 1 to the Police Station through his peon intimating the fact of Bali having been bought to the hospital with a number of bleeding injuries in a very serious condition and also of PW 5 having been admitted in the hospital for treatment of the injuries sustained by her and the said document exhibit Kha 1 was sent by 4.30 p.m. on 23.12.1976 itself and the hospital 's peon had brought the Receipt evidencing the handing over of the intimation to the police.
It is only thereafter that PW 1 prepared exhibit ka 1 and handed it over to PW 2 at about 8 p.m. on 23.12.1976.
According to PW 2, after registration of the case, a death memo was received at the Police Station at about 8.15 p.m. saying that Bali had expired in the hospital at about 7.40 p.m.
According to PW 1, the distance between the hospital and the police station is about 1 or 2 furlongs and that the police station is not situated near the hospital.
Nonetheless PW 1 would admit when confronted further that the distance between the gates of the hospital and the police station would be about 50 steps.
Be that as it may, the fact ramains that both the hospital and the police station are situated within a very short distance.
Admittedly, neither PW 1 nor any of PWs 3 and 4 went to the police station to inform about the occurrence though they reached the hospital even by 2 p.m.
The only explanation given by PW 1 is that he was busy enquiring about the condition of his brother.
This explanation of PW 1 is totally unacceptable because after both injured persons, namely, Bali & PW 5 were brought to the hospital they were examined only by the medical officer, PW 6.
There was nothing preventing either PW 1 or any of the other witnesses in going to the police station and informing the police, if really they were eye witnesses to the occurrence and were in the hospital from 2 p.m. onwards, leaving apart PW 5 who was undergoing treatment in the hospital.
The delayed preparation of exhibit Ka 1 by PW 1 at the hospital after seven hours of the occurrence and that too after the death of his brother, leads to an indelible impression that PW 1 and other interested persons who were enimically disposed towards the appellants should have prepared exhibit Ka 1 after due deliberation and consultation.
The abortive explanation for not going to the police station for six hours after reaching the hospital is unworthy of credence.
694 The next and even more important point for consideration is the much delayed investigation.
The conduct of PW 9 in not taking an immediate action even after exhibit Kha 1 was handed over at the police station by 4.30 p.m. or at any rate after receipt of Ka 1 and the death intimation creates a suspicion in the veracity of the prosecution case.
Though PW 2 admits that he received the death intimation by about 8.15 p.m., PW 9, the investigating officer, has feigned total ignorance about exhibit Kha 1 stating thus: "Before this F.I.R. no intimation was received at the police station about this occurrence that Bali was injured and admitted in the hospital and his condition was critical.
It is wrong that any information was received at the Police Station before this F.I.R. which I am concealing.
I do not know whether exhibit Kha 1 was received in the police station or not.
During the investigation exhibit Kha 1 never came to my knowledge.
This paper came to my knowledge during the investigation and I made a copy of this in the case Diary.
I do not know whether this Letter was recorded in the General Diary or not.
No copy of G.D. is recoorded in my case diary in connection with exhibit Kha 1.
No such note is there in my case diary that I had seen any G.D. which is related to Ex Kha 1.
I have not recorded any statement of the H.M. relating to exhibit Kha 1.
" We shall examine whether PW 9 took up the investigation at least after registration of the case without causing further delay.
PW 2 states that the investigating officer took up the investigation at about 8 p.m. on 23.12.1976 and went to the hospital and returned to the police station only on the next day i.e. 24.12.1976 at 9.50 p.m. PW 9 has lodged in his presence by PW 1 and that he immediately took up the investigation during the course of which he examined PW 1 and then come to the hospital where he examined the medical officer Dr. B.D. Goel (PW 6) and saw the dead body lying in the male ward.
He continues to state that as PW 5 was in an unconscious condition, he could not examine her and as the light went off, he could not prepare even the Panchnama.
This piece of evidence of PW 9 that he took up the investigation even at 8 p.m. is not only contradicted but also falsified by the testimony of PW 1 according to whom after lodging the report he immediately came back to the hospital and remained there till next morning and that the Sub Inspector (PW 9) came to the hospital for the first time in the morning of 24.12.1976 and only thereafter he was 695 examined.
PW 4 also states that the investigating officer came to the hospital only in the next morning.
PW 6, the medical officer, does not speak of the Sub Inspector having came to the hospital on the night of occurrence and has stated that he did not remember of the Sub Inspector or any constable reaching the hospital after receipt of the death intimation or any one examining him on that date.
The said pieces of evidence, namely, the total unawareness of PW 9 about the existence of exhibit Kha 1 as well as the entry in the general diary made thereon and the diametrically contradictory evidence of PW 9 on the one hand and that of PWs 1,4 and 6 on the other, clearly indicate that either PW 9 did not have any knowledge about the incident till the next morning or even if he had such knowledge, he deliberately delayed the investigation; and his present version is nothing but a deliberate perjury and as such his evidence has to be thrown overboard as unworthy of credence.
In the cross examination, it is admitted by PW 9 that he did not write the names of the appellants/accused in the Panchnama and that he did not try to know the kinds of weapons that had been used by the assailants.
On the basis of this admission a suggestion had been addressed to him that the FIR relating to this incident, was prepared and lodged only after preparation of the Panchnama thereby indicating that the FIR was anti dated.
We shall now scan the evidence of PWs 1, 3 and 4 examine whether their evidence could be accepted and acted upon.
Admittedly, there was deep rooted animosity between the prosecution party and the appellants over a period of some years and they have developed bad blood.
It is the evidence of PW 1 that there were a number of criminal cases against deceased Bali along with one Birbal Kishore and Omi who were persons of notorious character in that village.
Besides, there were some more cases and counter cases between the parties.
A suggestion has been addressed to PW 1 that his brother Bali was having close connection with one Ramanand who was a known decoit belonging to their village but PW 1 has denied the relationship of Bali with Ramanand.
PW 4 admits that there was a dispute between Bali and the appellants in which Bali had beaten them and in that case he was a co accused along with PW 1 and deceased Bali.
PW 3 who has been treated as a hostile witness since he did not implicate all the appellants by their names except Chandroo has admitted that there was a case against Bali and Birbal Kishore in which he was a witness on the side of Bali and that there was a double murder case in which he (PW 3) was an accused and convicted.
In that murder case one Roop 696 Ram, cousin of appellant Chndroo was a witness on the prosecution side.
Thus it comes out of the evidence of these witnesses that all was not well between the parties and each one was having grudge against the other.
As pointed out by Mr. Maheshwari, learned counsel appearing for the appellants, the conduct of PW 1 belies his presence at the sence of occurrence as he did not intervene when his brother (deceased) and sister in law (PW 5) were attacked by the appellants and another and if PW 1 had really been at the scene, he having been a co accused along with his brother in previous case, would not have been standing as a mute spectator without taking any part in the occurrence in which case he would also have received injuries.
In exhibit Ka 1 he has mentioned PWs 3 and 4 as eye witnesses who were enemically disposed of towards the appellants and who were interested in the prosecution.
As seen from the evidence of these three witnesses, they all belong to one group either having been co accused in one case or other along with Bali or taking up the cause of Bali when the latter was involved in other criminal cases.
In fact, one sentence in exhibit Ka 1 would indicate that PWs 1, 3 and 4 were not at the scene at the time of occurrence but came to the spot later on.
The relevant version in exhibit Ka 1 reads: "On alarm, I and my uncle Chotte Lal and Shiv Charan of the village reached the spot and saved them" Of course, he at the next breath would claim to have witnessed the occurrence.
We have also noted that the place of occurrence is not satisfactory fixed; and that the evidence of PW 1 giving the reasons for the presence of his deceased brother with PW 5 in the field, is also falsified by the evidence of PW 9.
According to PW 1, his deceased brother and PW 5 were harvesting sugarcane in the field at the time of occurrence.
But PW 9 has deposed that at the time of spot inspection he did not find any Bugi, Dokra, Phawara, Dranti or harvested sugarcane.
This contradictory evidence when taken along with our finding with regard to the fixation of the scene of occurrence goes to show that PW 1 could not have been present at the scene of occurrence and only after a deliberation he has posed himself as one of the eye witnesses and projected PWs 3 and 4 as other eye witnesses along with him.
PW 4 during the course of cross examination has admitted that except himself, PWs 1 & 5, none reached the scene and people came to the scene of occurrence later on.
After reaching the hospital along with injured, PW 4 states that all of them remained in the hospital near the dead body and that he went to the police station in the morning of the next day at about 7.00 a.m. As we have pointed out earlier, PW 3 has not implicated all the appellants except Chandroo by name and as such, he has been treated 697 as a hostile witness.
PW 3 is none other than the uncle of PW 1 and the deceased, therefore, in view of the inherent infirmities adversely affecting the testimony of these eye witnesses, it would not be safe to convict the appellants on the scanty evidence.
The author of the earliest document exhibit Ka 1, namely, PW 1 seems to be a man of dubious character and his evidence is completely tarnished.
A thorough scrutiny of the evidence shows that the testimony of the eye witness is ambulatory and vacillating and compels this Court not to place any safe reliance.
Lastly, we are left with the evidence of PW 2 who is an injured witness.
The presence of PW 2 at the scene is fortified by the injuries found on her person.
After scanning her evidence very carefully, we are unable to safely accept her evidence since it is not only tainted with highly interestedness but also a coloured version, falling in line with that of PW 1.
She states that she was unconscious for 2 days and that it was she who told PWs 1 and 4 as to who were the assailants.
Immediately in the next breath, PW 5 comes forward to say that on the next day she told all the facts to the investigating officer and again became unconscious after coming to know the death of her husband.
To a Court question, she gives a prevaricating answer that she was conscious for some time and then became unconscious.
Though at one time, she testifies that she was beaten with sticks, she suddenly changes her evidence giving a contradictory version that she did not know whether she was beaten or not.
Though all the witnesses in a parrot like manner deposed that these 4 appellant along with Braham Singh armed with ballam attacked the deceased, their evidence when subjected to strict examination becomes unworthy of credence.
The Trial Court on entertaining a grave doubt about the participation of Braham Singh with a ballam, acquitted him despite the fact that PW 6 has noted a stab wound on the inner side of left thigh measuring 2 x 1 x 1.5 cms which injury in the opinion of the medical officer could have been caused by a sharp edged weapon like 'ballam!.
The acquittal of Braham Singh was not challenged by the prosecution before the High Court, and therefore, we are not called upon to discuss on this aspect of the case.
However, it is clear that the trial Court was not inclined to accept a part of the evidence of these 3 witnesses i.e. PWs 1, 4 & 5 relating to the participation of Braham Singh.
In our considered opinion, the evidence, adduced by the prosecution, falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
698 A thorough and scrupulous examination of the facts and the circumstances of the case leads to an irresistible and inescapable conclusion that the prosecution has miserably failed to establish the charges levelled against these appellants by producing cogent, reliable and trustworthy evidence.
Both the Courts below instead of dealing with the intrinsic merits of the evidence of the witnesses, have acted perversely by summarily disposing of the case, pretermitting the manifest errors and glaring infirmities appearing in the case.
For all the aforementioned reasons, we allow the appeals by setting side the convictions and the sentence, imposed by the High Court and acquit the appellants.
The bail bonds, executed by the appellants, are discharged.
R.S.S. Appeals allowed.
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On 23.12.1976 at about 1 p.m. when Bali (deceased) along with PWs 1 and 5 was in his field, the four appellants each armed with a Lathi, along with Braham Singh armed with a 'Ballam ', came there.
On the exhortation of Chandroo, all other appellants and Braham Singh attacked Bali with their respective weapons and caused injuries to him.
While PW 3 tried to save her husband, she too was injured.
When PW 1 along with PWs 3 and 4 rushed to the scene of occurrence, the assailants took to their heels.
Injured Bali was removed to the hospital.
He succumbed to his injuries on the same day at about 7.45 p.m.
It seems that there was trained relationship between the appellants and the deceased for a considerable length of time over grazing of cattle, resulting in damage to the standing crops.
On account of this, there was simmering feeling between the parties.
Added to that, there were certain criminal prosecutions between the parties, pending for over a period of two years.
The four appellants along with Braham Singh (since acquitted by the Trial Court) took their trial.
The Trial Court found the four appellants guilty of offences under section 302 read with section 34 and under section 323 read with section 34 IPC and sentenced them to undergo imprisonment for life and to six months ' rigorous imprisonment respectively.
The 5th accused, Braham Singh, was acquitted.
On appeal, the High Court held that the prosecution had not made out a case punishable under section 302 read with section 34 IPC but only under section 304, Part II, IPC read with section 34 IPC.
The High Court sentenced each of them to undergo rigorous imprisonment for a period of five years.
The conviction of all the appellants under section 323 read with 149 IPC was altered into one under section 323 read with 34 IPC and the sentence of six months ' rigorous imprisonment was retained.
686 Before this Court it was contended on behalf of the appellants that since both the courts below had overlooked the glaring infirmities and ignored the material evidence supporting the defence theory as well as the manifest errors appearing in the evidence, this Court would be justified in interfering with the concurrent findings of both the courts.
According to the learned counsel, the prosecution had shifted the scene of occurrence, changed the time of occurrence, unduly delayed the registration of the case and put forth a false explanation for its tardiness both in the matter of registration and investigation of the case.
Allowing the appeals by setting aside the convictions and the sentence imposed by the High Court, this Court, HELD: (1) Under Article 136, Interference by the Supreme Court will be called for even with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.
[690F] The State of Madras vs A. Vaidyanatha Iyer, ; ; Himachal Pradesh Administration vs Shri Om Prakash, ; Balak Ram vs State of U.P., ; ; Arunachalam vs P.S.R. Sadhananthan, ; State of U.P. Hamit Singh & Ors., ; State of U.P. vs Pheru Singh & Ors., [1989] Suppl.
1 S.C.C. 288, referred to.
(2) The evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
[697H] (3) A thorough and scrupulous examination of the facts and the circumstances of the case leads to an irresistible and inescapable conclusion that the prosecution has miserably failed to establish the charges leveled against these appellants by producing cogent, reliable and trustworthy evidence.
Both the Courts below instead of dealing with the intrinsic merits of the evidence of the witnesses, have acted perversely by summarily disposing of the case, pretermitting the manifest errors and glaring infirmities appearing in the case.
[698A B]
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Civil Appeal No. 848 of 1991 etc etc.
From the Judgment and Order dated 14.12.1990 of Madhya Pradesh High Court in M.A. No. 227 of 1990.
Kapil Sibal, H.N. Salve, J.B. Dadachanji, Mrs A.K. Verma and section K. Mehta for the Appellants.
K.K. Venugopal, P. Chidambaram, S.S. Ray and P.P. Tripathi for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
The Olympic games are ancient in origin.
According to the Encyclopaedia Britannica they commenced some 3,500 years ago and the name came from its association with the place known as Olympia in Greece.
These games were played once in every four years and were abolished in 393 AD by the Roman Emperor Theodosius I.
In recent times, they were revived in 1896 and have until now been held at the turn of every four years excepting during the first and the second world wars.
The Olympic games are one of the biggest international events and provide great opportunities to amateur sportsmen in the different classifications.
Indian participation in the Olympic games dates back to 1900 when a single representative had joined the Olympics at Paris.
Gradually, such participation became more systematic and broad based.
While the Ministry of Youth Affairs and Sports of the Union Government looks after development of sports within the country, the management of the Olympic participation has been entrusted to a society registered under the Societies Registration Act (21 of 1860) known by the name 'Indian Olympic Association ' (for short IOA ') The Memorandum of Association of this society indicates that the principal objects of the society, inter alia, are: (i) to develop and promote the Olympic movement and amateur sport, (2) to promote and encourage the physical, moral and cultural education of the youth of the nation for the development of character, good heath and good 662 citizenship, (3) to enforce all rules and regulations of the International Olympic Committee (hereinafter referred to as 'IOC ') and the IOA; (4) to be the official organisation in complete and sole charge of all Olympic matters in the country, (5) to educate the public of the country as to the value of amateurism in sports; (6) to maintain the highest ideals of amateurism and to promote interest therein, particularly in connection with the Olympic games and other games under the patronage of the IOC as well as the IOA, (7) to have full and complete jurisdiction over all matters pertaining to the participation of India in the Olympic games and other games under the patronage of the IOC as well as the IOA, (8) to assist in cooperation with National Sports Federations/Associations the selection, training and coaching of the teams that will represent Indian in the Asian, Commonwealth, Olympic and other international competitions and tournaments, under the patronage of the teams in the said competitions and tournaments after selection, (9) to undertake with the assistance of National Sports Federations/Associations the financing, management, transportation, maintenance and welfare of teams from India taking part in the Olympic games and other games under the patronage of the IOC as well as the IOA; and (10) to timulate the interest of the people of the country in the promotion of sports and games in the Olympic programme, and to that end the formation of State Olympic Association for the development of sports and games within a State and National Sports Federations for games and sports in the Olympic programme.
We have quoted most of the important objectives to bring it to the forefront that the I.O.A. has been brought into existence to sponsor, supervise, finance, regulate and control all aspects of sports activity in relation to the Asian, Commonwealth, Olympic and international competitions and tournaments under the patronage of the IOC.
While its funding is partially out of membership fee, bulk of it comes from Government contribution.
The society has a set of rules and regulations.
There are five categories of members as described in rule 3.
The management of the affairs of the Association is entrusted to an Executive Council defined in rule 1(v).
Rule 8 provides that the Executive Council shall have (i) a President (ii) 9 Vice Presidents (iii) a Secretary General (iv) 6 Joint Secretaries (v) a Treasurer (vi) 7 Members elected from among representatives of State Olympic Associations and (vii) 12 members elected from among the representatives of National Sports Federation/Association/ SSCB.
Rule 8 provides the manner of elections to be held 663 for the Executive Council.
The term of the Executive Council is 4 years.
Rule 11 provides the voting procedure.
Clause (b) of that rule requires that voting if necessary in the IOA Executive Council, IOA Emergency Executive Council and/or at the annual general or special general meetings of the IOA shall be by show of hand.
However, if in a particular case the procedure has to be changed, the same will be done by a resolution of the concerned body passed by majority vote.
The very rule provides as to the voting power of the different units composing the IOA.
Rule 12 deals with the office bearers like the President, the Vice President, the Secretary General, the Joint Secretaries, the Treasurer etc.
For the resolution of the dispute before us perhaps reference to the other rules is not necessary.
The IOA was reconstituted with effect from 28th of October, 1984, with appellant Shri V.C. Shukla as the President.
K. Murugan, appellant in C.A. No. 848 of 1991 (arising out of SLP 1064/91) was one of the 6 Joint Secretaries.
In November, 1988, Shri B.S. Adityan, one of the vice President of the 1984 Executive Council was elected as President for a term of four years.
On 16th of May, 1990, there was a requisition of 17 Members for a special general meeting for considering the move of a no confidence motion against Shri Adityan and his Executive Council.
With this started a period of confrontation between the two groups in the Association.
In May, 1990, the Executive Council overruled the requisition as invalid and President Adityan called a meeting of the General assembly at Madras for 15th of June, 1990.
For the same day the other group summoned a meeting of the general assembly at New Delhi.
This led to Court proceeding and the Delhi High Court restrained the requisitionists from holding their meeting at New Delhi and appointed a retired Judge of the Delhi High Court as an observer for the meeting to be held at Madras.
In the convened meeting of 15th of June, minutes of the proceedings whereof have been seriously disputed Shri Shukla claimed to have been elected.
A little before the meeting of the 15th of June at Madras, further proceedings were taken in Court which have been labelled as collusive and manipulations for obtaining an order for the manner of voting.
The warring factions lost sight of the laudable goals of the IOA and the purpose for which the Association had been set up and put their entire attention on winning control over the affairs of the IOA in their grip through litigation.
664 A Single Judge of the Madras High Court having decided in favour of Shri Adityan, the matter ultimately came before a Full Bench which by its order dated 3rd of January, 1991, remitted the matter to the learned Single Judge and appointed Justice Natarajan, a retired Judge of this Court, to discharge the functions of the President of the IOA as an interim measure.
This order is challenged in the appeal by Shri Murguan and Shri V.C. Shukla by two different appeals being Civil Appeals Nos. 852.853 of 1991 (arising SLPs 1599 and 1787/91).
Not content with the litigation in the Delhi and Madras High Courts, the Fencing Association of India filed a civil suit at Jabalpur asking for declaration that Shri Shukla had been duly elected as President.
An application for injunction in support of Shri Shukla having been rejected by the trial Judge an appeal had been taken before the High Court where a learned Single Judge made a status quo order.
The other two appeals arise out of proceedings including contempt taken therein.
Long arguments have been advanced before us by Mr. Venugopal for Shri Adityan and by Mr. Sibal for Shri Shukla.
The main contention of Mr. Venugopal is that under the rules the terms of the President and the Executive Council is four years and in the absence of a clear provision for a vote of No. confidence, which would curtail the period, there could be no reduction of the period of office.
It has also been contended that the entire Executive Council could not be voted out of office by a motion of no confidence and, therefore, Shri Adityan had rightly overruled the requisition.
Serious challenge has been advanced by Mr. Sibal against the proceedings taken before the Madras High Court and particularly, the learned Judge making an order changing the manner of voting from show of hands to one by ballot in what is stated to be a collusive proceeding.
This does not appear to us to be a matter where individual rights in terms of the rules and regulations of the Society should engage our attention.
Sports in modern times has been considered to be a matter of great importance to the community.
International sports has assumed greater importance and has been in the focus for over a few decades.
In some of the recent Olympic games the performance of small States has indeed been excellent and laudable while the performance of a great country like India with world 's second highest populations has been miserable.
It is unfortunate that the highest body in charge of monitoring all aspects of such sports has got involved in group fight leading to litigation and the objectives of the Society have been lost sight of.
The representation of India in the IOA has been in jeopardy.
665 The grooming of amateurs has been thrown to the winds and the responsibility placed on the Society has not been responded.
This, therefore, does not appear to us to be a situation where rights to office will have to be worked out by referring to the provisions of the law relating to meetings, injunction and rights appurtenant to elective office.
What seems to be of paramount importance is the healthy conditions must be restored as early as possible into the working of the Society and a fresh election has to be held as that seems to be the only way to get out of the malady.
The entire nation is looking up to the results of the competitions at the international games when they are held.
As we have already pointed out, IOA has great responsibities to discharge in organising and streamlining the national sport activities intended for international events.
The monitoring has to be a continuous one and unless the scheme is ongoing and is made result oriented, the international performance cannot be up to any appreciable level.
The question for consideration, therefore, is not as to which of the two factions should succeed.
On the other hand, it is appropriate that all the litigations now pending should abate.
In the interest of the appropriate functioning of the Society the litigation outside the headquarters of the Society should not be permitted.
We accordingly direct that any litigation, if at all, should only be within the jurisdiction of the Delhi High Court and no Court in India would entertain litigations relating to the functioning of IOA in any aspect.
A fresh Executive Council should be set up and for that purpose elections should be held within two months hence.
The general assembly should be convened to meet at Calcutta on 28th of April, 1991.
We appoint Mr. Justice A.D. Koshal, a retired Judge of this Court to conduct the elections keeping the provisions of the rules and regulations of the IOA in view.
Voting shall be by secret ballot.
The list of voters should be finally settled within four weeks from now and if it is necessary to have any hearing in the matter we authorise such hearing to be undertaken by Mr. Justice Koshal.
Until then, Mr. Justice Natarajan will continue to exercise his powers as conferred by the order of the Madras High Court.
Once the results of the elections are announced, Mr. Justice Natarajan would cease to be in office and the Association would take over.
To enable Mr. Justice Koshal to discharge the obligations cast upon him by this decision, the Ministry of Youth Affairs and Sports is directed to place at his disposal a sum of Rs.25,000 (Twenty five thousand) within two weeks and a small group of assistants as he may need.
Payment of remuneration for the work done shall be fixed by the Court later.
666 All the proceedings in the different High Courts abate; the suit in the Jabalpur High Court shall stand dismissed.
The contempt proceedings now pending shall not be proceeded with.
In the course of arguments some criticism was advanced against the order of the High Court providing monthly remuneration to Mr. Justice Natarajan.
We leave this aspect to be considered by Mr. Justice Natarajan himself and do not propose to deal with it in our order.
Before we leave this matter we would like to point that the Union of India should take greater interest in organising sports both for national and international purposes.
Sports have a role to play in building up good citizens.
That aspect should be kept in view.
We have a feeling that while a lot of money is allotted for the purpose of improvement of sports, the result has been considerably poor and deceptive.
We hope and trust that this aspect of the criticism heard from everywhere in this country shall also be given due consideration.
V.P.R. Appeals disposed of.
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The Indian Olympic Association was a society registered under the Societies Registration Act, with the principal object to sponsor, supervise, finance, regulate and control all aspects of sports activity in relation to the Asian, Commonwealth, Olympic and International competitions.
The Society had a set of rules and regulations.
There are five categories of members described in Rule 3.
The management of the affairs of the Association is entrusted to an Executive Council defined in Rule 1(v).
Rule 8 provided that the Executive Council shall have (i) a President, (ii) 9 Vice Presidents, (iii) a Secretary General, (iv) 6 Joint Secretaries, (v) a Treasurer and (vi) 19 Members.
The terms of the Executive Council was to be 4 years, while Rule 11 provides the voting procedure.
The Indian Olympic Association was reconstituted with effect from 28 of October, 1984, with the appellant in C.A. No. 852 of 1991, Shri V. C. Shukla as the President, K. Murugan, the appellant in C.A. No. 848 of 1991 as one of the 6 Joint Secretaries.
In November, 1988, one of the Vice President of the 1984 Executive Council, Shri B.S. Adityan, the appellant in C.A. No. 849/91 was elected as President for a term of four years.
On 16th of May, 1990, there was a requisition of 17 Members for a special general meeting for considering the move of a no confidence 659 motion against the aforesaid Shri B.S. Adityan and his Executive Council.
This initiated a period of confrontation between the two groups in the Association.
In May 1990, the Executive Council overruled the aforesaid requisition as invalid and President Adityan called a metting of the General Assembly at Madras for 15th of June, 1990.
For the same day the other group summoned a meeting at New Delhi.
This aforesaid situation led to Court proceedings, and the Delhi High Court restrained the requisitionists from holding their meeting at New Delhi and appointed a retired Judge of the Delhi High Court as an observer for the meeting to be held at Madras.
At this meeting Shri V.C. Shukla, the appellant in C.A. No. 852/91 claimed to have been elected.
The matter was taken to Court and a Single Judge decided in favour of Shri B.S. Adityan, the appellant C.A.No. 8549/91, but when the matter came up before the Full Bench of the High Court, it remitted the matter to a Single Judge who appointed a retired Judge of this Court to discharge the function of the President of the Association as an interim measure.
This Order has been challenged by the appellants in Civil Appeals Nos.
852 853/91.
The Fencing Association of India filed a civil suit at Jabalpur for the declaration that Shri V. C. Shukla had been duly elected.
The application for injunction from having been rejected by the Trial Judge, an appeal had been taken to the High Court where the Single Judge ordered status quo.
Two Civil Appeals were also filed against this order.
It was contended on behalf of the appellants that under the rules the term of the President and the Executive Council was four years and in the absence of a clear provision for a vote of no confidence which would curtail the period, there could be no reduction of the period of office, and that the entire Executive Council could not be voted out of office by a motion of no confidence.
Disposing of the appeals, this Court, HELD: 1. Sports in modern times has been considered to be a matter of great importance to the community.
International sports has assumed greater importance and has been in the focus for over a few decades.
[664D E] 660 2.
It is unfortunate that the highest body incharge of monitoring all aspects of such sports has got involved in group fight leading to litigation and the objectives of the I.O.A. have been lost sight of.
The representation of India in the I.O.A. has been in jeopardy.
[664E F] 3.
The grooming of amateurs has been thrown to the winds and the responsibility placed on the Society has not been responded.
This, therefore, does not appear to be a situation where rights to office will have to be worked out by referring to the provisions of the law relating to meetings, injunction and rights appurtenant to elective offices.
[664F G] 4.
What seems to be of paramount importance is that healthy conditions must be restored as early as possible into the working of the Society and a fresh election has to be held as that seems to be the only way to get out of the malady.
[644G H] 5.
The entire nation is looking up to the results of the competitions at the international games when they are held.
I.O.A. has great responsibilities to discharge in organising and streamlining the national sport activities intended for international events.
The monitoring has to be a continuous one and unless the scheme is ongoing and is made result oriented, the international performance cannot be up to any appreciable level.
[664G 665B] 6.
This does not appear to be a matter where individual rights in terms of the rules and regulations of the Society should engage attention.
[664D E] 7.
It is appropriate that all the litigations now pending should abate, and for appropriate functioning of the Society the litigation outside the headquarters of the Society should not be permitted.
[665B C] 8.
A fresh Executive Council should be set up and for that purpose, elections should be held within two months hence; a retired Judge of this Court is appointed to conduct the elections keeping the provisions of the rules and regulations of the I.O.A. in view.
All the proceedings in the different High Courts abate.
[665C D, G] 9.
It is directed that the Union of India should take greater interest in organising sports both for national and international purposes.
Sports have a role to play in building up good citizens.
That 661 aspect should be kept in view, while a lot of money is allotted for the purpose of improvement of sports, the result has been considerably poor and deceptive.
This aspect of the criticism hear from everywhere in this country shall also be given due consideration.
[666A B]
|
ivil Appeal No. 4974 of 1990.
From the Judgment and Order dated 20.6.1990 of the Bombay High Court in W.P. 2403 of 1989.
G.L. Sanghi, Mrs. Jayshree Wad, Dhruv Mehta and Ms. Tamali Das Gupta for the Appellant S.V. Deshpande, V.N. Patil and A. section Bhasme (NP), for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Pursuant to the Notification issued in June 1986 the elections of Directors to the District Central Cooperative Bank, Chandrapur, hereinafter referred to as 'the Bank ' the appellant filed his nomination papers in July 1986, and he was elected on 18.8.1986 as one of the Directors of the Bank from the Brehmapuri Agricultral Sales and Purchase Society.
His election was not called in question according to the procedure prescribed by the Maharashtra Cooperative Societies Act, 1960, hereinafter referred to as 'the Act '.
On 8.1.1987, the District Deputy Registrar of the Cooperative Societies, Chandrapur, hereinafter referred to as 'the Deputy Registrar ', issued a notice to the appellant under section 78(1) of the Act to show cause within 15 days as to why he should not be removed from the Board of Directors of the Bank as per the provisions of section 73FF, and directed him to remain present on 2.2.1987 at 11 678 A.M. in the Deputy Director 's office.
The notice stated that the appellant had borrowed a loan of total Rs. 10,000 (Rs. 7,000 as debt and Rs. 3,000 subsidy) from the Bank and he kept the loan constanty in arrears till 21.10.1986, and being elected as Director of the Bank on 18.8.1986.
till then he was working as the Director of the Bank.
The notice further said: "Because you have remained in arrars of the loan instalments as referred above to the Maharashtra State Cooperative Land Development Bank, under Section 73FF(i)(b) of the Maharashtra State Cooperative Societies Act, 1960, you are disqualified to be elected or to continue as Director or Executive Committee Member of the Executive Committee of a Cooperative Society and u/s 73FF(2) of Maharashtra State Cooperative Societies Act, 1960 a person committing defaults ceased to be the Executive Committee (member) or Director.
From the information above given because the loan instalments of Maharashtra State Cooperative Land Development Bank remained due from you on the date of filing nomination papers for the election of post of Director of Chandrapur District Central Cooperative Bank and also on the date of your election and thereafter, you are disqualified to contest the election to the post of Director of Chandrapur District Central Cooperative Bank as also to be elected and to continue as Director.
And therefore under powers given to me by Section 78(1) of Maharashtra State Cooperative Societies Act, 1960 and order No. CSL/1481/24982/15 C(87) dated 1.7.81 of Agriculture and Cooperation Department of Maharashtra State Government.
I, K.M. Deshpande, District Dy, Registrar, Cooperative Societies, Chandrapur hereby ask you to show cause in writing as to why you should not be removed from the Board of Directors of Chandrapur District Central Cooperative Bank and from the Executive Committees of the other cooperative societies in the District.
Your explanation in writing should be submitted to this office within 15 days from the receipt of this notice.
" The appellant showed cause and also filed an additional reply on 10.11.87 stating that he "had not committed any default after the 679 amended section 73FF came into existence.
" The Assistant Regisrar, Cooperative Societies, Chandrapur by his order dated 7.12.1987 removed the appellant from the Committee of Directors of the Bank holding that appellant was defaulter on 31.1.1986, on 31.3.1986 and he became defaulter under the provisions of section 73FF(1) of the Act, and rejected the appellant 's contention that section 73FF became applicable from 6.8.1986 as per the Government Notification issued on 18.4.1986 and that as he had accepted that he paid the dues on 21.10.1986, on 18.8.1986 when he was elected as Director, he was defaulter under section 73FF(1) of the Act.
The order of the Assistant Registrar dated 7.12.1987 was served on the appellant on 8.12.87.
The appellant 's appeal against that order was dismissed by the Divisional Joint Registrar of the Cooperative Societies, Nagpur on 15.2.1988, holding, inter alia, that section 73FF of the Act came into force on 12.5.1986 and the appellant could be treated as a defaulter under that section; and the mere making of payment on 21.10.86 did not mean that the disqualification on account of his being defaulter which continued from 18.8.1986 to 21.10.1986 was extinguished and hence the appellant was not at all eligible to contest the election.
The appellant 's revision petition therefrom under section 154 of the Act was dismissed on 30.8.89 by the Cooperation and textile Department, State of Maharashtra, Bombay holding that the appellant was defaulter under section 73FF of the said Act on 18.8.1986 i.e. the date when he was declared elected as Director.
The appellant 's writ petition in the High Court filed on 1.9.1989 challenging the above order dated 30.8.89 was dismissed by the impugned Judgment and Order dated 20.6.90, holding that the dues calculated on 31.1.86 became recurring dues every following day and on 12.5.1986 when section 73FF came into force the outstanding dues continued even on 18.8.1986 when the appellant contested the election; and that the question of giving retrospective effect to the section did not arise because the appellant was a defaulter when he contested the election and though he paid all the debts on 21.10.1986 yet he could not be "absolved of the disqualification on the day he contested the election".
Hence this appeal by special leave.
Mr. G. L. Sanghi, the learned counsel for the appellant submits, inter alia, that the impugned order of the Assistant Registrar removing the appellant from the Committee of the Directors is without jurisdiction inasmuch as the Act prescribes a separate procedure for calling in 680 question the appellant 's election as a Director of the Bank and that procedure having not been followed the Assistant Registrar could not have acted under section 78(1) of the Act which did not envisage the setting aside of an election as has been done by the impugned order;that the appellant having repaid the entire loan before the impugned notice under section 78(1) of the Act was issued, he was surely not a defaulter in presenti on the date of the notice and the provisions of section 78(1) were not attracted; and that even assuming that the disqualification on the ground of default is common both for election and for continuation as a Director in the Committee, the special provision for setting aside an election must prevail over section 78 as there would be apparent conflict between the two and the maxim generalia specialibus non derogant general words do not derogate from special, would apply, Mr. V. N. Patil, the learned counsel for the State of Maharashtra, submits that the disqualification as defaulter continued after the election of the appellant and section 78 envisaged such a default and the appellant having continued to be a defaulter was lawfully removed and the fact that he repaid the loan before the notice was issued would not be material for the purpose of taking action under section 78.
Chapter XI A of the Act deals with election of committees and officers of certain societies.
Admittedly this Chapter applies to the Bank.
Section 144E deals with disqualification for membership.
Under sub section (1) thereof a person shall be disqualified for being elected as, and for being a member, of the committee of any specified society, . (e) if he is so disqualified by or under any other provision of this Act.
Section 144T deals with desputes relating to election and provides in sub section (1) that notwithstanding anything contained in section 91 or any other provisions of this Act, any dispute relating to an election shall be referred to the Commissioner of the Division in which such election is held or to an officer not below the rank of Additional Commissioner of division authorised by the State Government in this behalf.
The procedure for an election petition is prescribed by the subsequent section of that Chapter.
Admittedly the appellant 's election was not called in question under the above provision.
Section 144E, as have noted, over and above the other specified disqualifications in sub section (e) included disqualifications by or under any other provisions of the Act.
Section 78(1) which deals with powers of removal of committees or member thereof provides as follows: 681 "78(1) If, in the opinion of the Registrar, the committee of any society or any member of such committee makes default, or is negligent in the performance of the duties imposed on it or him by this Act or the rules or the bye laws, or commits any act which is prejudicial to the interests of the society or its members, or wilfully disobeys interests of the society or its members, or wilfully disobeys directions issued by the State Government, or by the Registrar for the purposes of securing proper implementation of cooperative policy and development programme approved or undertaken by the State Government or is otherwise not discharging its or his functions properly and diligently and the business of the society has or is likely to come to a standstill, or where any member of such committee stands disqualified by or under this Act for being a member, the Registrar may, after giving the committee or the member, as the case may be, an opportunity of stating its or his objections, if any, within 15 days from the date of receipt of notice, and after consultation with the federal society to which the society is affiliated, by order (a) (i) remove the committee, and (ii) appoint a committee consisting of three or more members (who shall not be the members of the committee so removed) of the society in its place, or appoint one or more Administrators who need not be the members of the society, but who shall not be the members of the committee so removed, to manage the affairs of the society for a period not exceeding six months, which period, at the discretion of the Registrar, be extended by a further period not exceeding three months so, however, that the total period does not exceed nine months in the aggregate: Provided that, the Registrar shall have the power to change the committee or any member thereof or the Administrator or Administrators appointed under paragraph (ii) at his discretion even before the expiry of the period secified in the order made under this sub section; (b) xxx xxx xxx" Section 78(1) empowers the Registrar to remove a member of a committee who "makes default" or where any member of such committee 682 "stands disqualified by or under this Act for being a member".
Section 73FF deals with disqualification for membership of committee.
Sub section (1) provides: "Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being a member of a committee, no person shall be eligible for being appointed, nominated, elected, co opted or, for being a member of a committee, if he (i) is a defaulter of any society; Explanation For the purposes of this clause, the term "defaulter" includes (a) in the case of a primary agricultural credit society, a member who defaults the repayment of the crop loan on the due date; (b) in the case of term lending society, a member who defaults the payment of any instalment of the loan granted to him; xxx xxx xxx xxx xxx xxx Sub section (2) says: "A member who has incurred any disqualification under sub section (1), shall cease to be a member of the committee and his seat shall thereupon be deemed to be vacant." This section was inserted by Maharashtra Act, XX of 1986 with effect from 12.5.86.
If the impugned order is found to have been passed by way of setting aside the election of the appellant the order would be bad as the appellant 's election had not been called in question in accordance with the procedure prescribad by the Act.
However, the notice has ex facie been issued under section 78 of the Act.
No doubt there is reference to the appellant 's having been a defaulter and disqualified for being elected but it has been addressed to the appellant as Director of the Bank and also stated: "You have been elected as Director on the Board of Directors of Chandrapur District Central Cooperative Bank on 18.8.1986 and today on this date you are working as the Director of the said Bank.
" It also refers to the appellant 's being disqualified or to continue as Director or Executive Committee member of the Executive Committee ' under 683 section 73FF of the Act and about ceasing too be a Director by committing default.
From the above contents, there is no room for holding that the appellant 's election has been set aside by the impugned order; on the other hand, the emphasis is on the appellant 's being disqualified to continue as Director or creasing to be Director on account of his having committed default.
The question of generalibus specialia derogant special things take from general or generalia specialibus non derogant general words do not derogate from special, therefore, does not arise.
What was stated in para 36 of the report in Hundraj Kanayalal Sajnani vs Union of India, ; at 1121 will not be relevant.
The question of repugnancy involved in Zaverbhai Amaidas.
vs The State of Bombay, [1955] 1 SCR 799 does not arise in this case.
The decision in Maharashtra State Board of Education vs Paritosh Sheth, ; is also not apposite.
The provisions relating to election have to be interpreted harmoniously with other provisions of the Act such as in section 78(1).
Interpretare concordare leges legibus est optimus interpretendi modus.
To interpret and in such a way as to harmonize laws with laws is the best mode of interpretation.
Mr. Sanghi does not dispute that the appellant was in arrear in respect of instalments on the date of his election and till 21.10.1986 i.e. both prior and posterior to his election on 18.8.1986.
Admittedly the instalment was not paid on due date.
There was of course some dispute as to the amount of interest payable and appropriation of the amount paid against interest instead of capital but all this would not exonerate the appellant from being in default on non payment of instalment on due date.
Mr. Sanghi, however, submits that the expression, "makes default" or "stands disqualified" being in present the default must have been committed after the coming into force of section 73FF and that his default even, if any, was prior to that date and not after that date.
We are unable to persuade ourselves to accept this submission.
The day an instalment falls due on its due date failure to pay results in default and that default continues from day to day until it is repaid.
Every day thereafter until payment results in making of default and, therefore, it could not be said that default could be on the due date only and thereafter no default but only liability.
Considered by this principle the appellant can be said to have made default on the first day of his directorship and on every subsequent day till the instalment or instalments were paid.
The submission, has therefore, to be rejected.
684 Similarly the submission that the defalult must have been one committed after the Act came into force has also to be rejected on the same ground that immediately on the Act coming into force the appellant was a defaulter and so long that default continued he must be taken to have made default until repayment.
What then would be the consequence of such a default.
Sub section (2) of section 73FF says that a member who has incurred any disqualification under sub section (1) shall cease to be a member of the Committee and his seat shall thereupon be deemed to be vacant.
Therefore, the moment the appellant after election continued to be in default, and, therefore, must be taken to have made default, stood disqualified and thereby ceased to be a member of the committee and his seat deemed to have fallen vacant.
In this view of the matter the notice of the Deputy Registrar was in effect to say that the appellant had already ceased to be a Director and his seat already fell vacant.
In Keshaorao Narayanrao Patil vs District Deputy Registrar reported in Bombay High Court held that section 73FF(2) did not operate automatically and that passing of an order of removal was necessary.
This has to be interpreted in the context of the provisions in the section.
In this view of the matter there could not be any infirmity either in the notice or in the impugned order of removal.
The result is that this appeal fails and is dismissed.
The interim orders, if any, stand vacated.
No. costs.
R.N.J. Appeal dismissed.
|
The appellant was elected on 18.8.1986 as one of the Directors of the District Central Co operative Bank, Chandrapur, Maharashtra from the Brehmapuri Agricultural Sales and Purchase Society.
On 8.1.1987 the District Deputy Registrar of the Co operative Societies, Chandrapur issued a notice to him under section 78(1) of the Act to show cause as to why he should not be removed from the Board of Directors of the Bank and from the Executive Committees of other Co operative Societies in the District for having remained in arrears of the loan instalments due from him on the date of filing of nomination papers for election to the post of Director of the Bank and thereafter till 21.10.1986 when he actually repaid the dues thereby incurring the disqualification as contemplated by section 73FF of the Act.
The appellant showed cause and by additional reply took the stand that he had not committed any default after the amended section 73FF came into existence.
This was rejected and by Order dated 7.12.1987 passed by the Assistant Registrar Co operative Societies, Chandrapur he was removed from the post of Director holding him to be a defaulter under section 73FF of the Act.
Appeal against that order was dismissed by the District Joint Registrar and his revision therefrom made under section 154 of the Act too met the same fate at the hands of the Cooperative & Textile Department, State of Maharashtra, Bombay Dismissing his Writ Petition filed thereafter, the High Court of Bombay held that when the appellant contested the election he was a defaulter and even though he had paid all the debts on 21.10.1986 yet he could not be absolved of the disqualification on the day he contested the election.
In the appeal before this Court it was argued on behalf of the appellant that the impugned order of the Assistant Registrar removing him from the Board of Directors was without jurisdiction in as much as 676 the Act prescribes separate procedure for calling in question the election and that procedure having not been followed the Assistant Registrar could not have acted under section 78(1) of the Act; that the entire loan having been repaid before the issue of notice under section 78(1) he was not a defaulter in presenti and lastly even assuming that the disqualification on the ground of default is common both for election and continuation as Director in the Committee, the special provision for calling in question an election mut prevail over section 78.
Rejecting the contentions and dismissing the appeal, the Court.
HELD: If the impugned order is found to have been passed by way of setting aside the election of the appellant, it would be bad as his election had not been called in question in accordance with the procedure prescribed by the Act.
However, the notice has ex facie been issued under section 78 of the Act.
No doubt there is reference to his having been a defaulter and disqualified for being elected but it has been addressed to him as Director on the Board of Directors.
It also refers to his being disqualified "to be elected or to continue as Director or Executive Committee member of the Executive Committee" under section 73FF of the Act and about ceasing to be a Director by committing default.
From the above contents, there is no room for holding that the appellant 's election has been set aside by the impugned order.
On the other hand, the emphasis is on his being disqualified to continue as Director or ceasing to be Director on account of his having committed default.
[682F 683A] The day an instalment falls due on its due date, failure to pay results in default and this default continues day after day until it is repaid.
The appellant can be said to have made default on the first day of his directorship and on every subsequent day till instalments were paid.
The appellant was a defaulter immediately on the coming into force of section 73FF and so long that default continued he must be taken to have made default until repayment.
[683G 684A] Sub section (2) of Section 73FF says that a member who has incurred any disqualification under sub section (1) shall cease to be a member of the committee and his seat shall thereupon be deemed to be vacant.
Therefore, the moment the appellant after election continued to be in default and must be taken to have made default, stood disqualified and thereby ceased to be a member of the Committee and his seat deemed to have fallen vacant.
In this view of the matter the notice of the Deputy Registrar was in effect to say that the appellant had already ceased to be a director and his seat already fell vacant.
In Keshaorao 677 Narayanrao Patil vs District Deputy Registrar, reported in , Bombay High Court held that section 73FF(2) did not operate automatically and that passing of an order of removal was necessary.
This has to be interpreted in the context of the provisions in the section.
[684B D] Hundraj Kanayalal Sajnani vs Union of India, A.I.R. at 1121; Zaverbhai Amaidas vs The State of Bombay, [1955] 1 S.C.R. 799; Maharashtra State Board of Education vs Paritosh Sheoth, ; , distinguished.
Keshaorao Narayanrao Patil vs District Deputy Registrar, , approved.
|
ivil Appeal No. 2589 of 1979.
From the Judgement and Order dated 8.8.1977 of the Bombay High Court in Special Civil Application No. 983 of 1972.
V.M. Tarkunde, Ms. section Janani and Mrs. Urmila Kapoor for the Appellant.
S.B. Bhasme, U.R. Lalit, D.N. Misra, R.A. Gupta and Ms. Shefali Khanna for the Respondents.
The Judgement of the Court was delivered by THOMMEN.
This appeal arises from the judgement of the Bombay High Court in Special Civil Application No. 983 of 1972 setting 834 aside the order made by the appellate officer, (the Principal Judge of the City Civil Court, Bombay) under section 105F of the Bombay Municipal Corporation Act, 1888 ( 'The Act ' whereby he allowed the appellant 's appeal against the order of eviction made against it under section 105B of the Act by the enquiry officer, acting in terms of section 68 of the Act as a delegate of the Commissioner of the Municipal Corporation of Greater Bombay, the first respondent, ("the Corporation").
By the impugned judgement, the High Court has confirmed the order of eviction made against the appellant, the principal occupant of two godowns belonging to the Corporation.
the original occupant of the godowns, Glenfield & Co., had on 1.10.1963 granted to the appellant a licence in respect of these premises and subsequently by a deed of assignment dated 13.8.1966 assigned all its rights, title and interest in the premises in favour of the appellant.
The appellant thereafter requested the Corporation on the ground that Ghatge & Patil (Transport) Pvt. Ltd., the second respondent, had been already in occupation of the premises, and after satisfying itself as to those terms, the Corporation transferred the occupancy right from Glenfield & Co. to the appellant on the appellant executing a formal agreement dated 17.6.1967.
The Corporation was thus fully aware of the terms and conditions of occupation of the premises by the second respondent, and, with the full knowledge of those terms, the appellant was recorded in the Corporation 's book as the principal occupant in the place of Glenfield & Co. the second respondent was thus understood and accepted by the Corporation to be in occupation of the premises under the appellant.
All this was in 1967.
A notice dated 25.7.1969 terminating tenancy purporatedly in terms of the agreement dated 17.6.1967 was served on the appellant.
This was followed by an enquiry under the Act which commenced in 1970 and resulted in the order of eviction dated 6.1.1971.
The order of eviction refers to the appellant as the principal tenant and the second respondent as a sub tenant.
The enquiry officer, acting as a delegate in terms of section 68 and exercising the power of Commissioner 835 under section 105B, ordered eviction of the appellant on the ground of sub letting the premises.
She held that the appellant had sub let the premises contrary to the terms or conditions of occupation and had thus become an unauthorised occupant liable be evicted from the premises.
The enquiry officer, on inspection, found that that the second respondent was in occupation of the premises as sub lessee.
She noticed the terms and conditions of the agreement dated 27.3.1964 under which the premises had been allowed to be occupied by the second respondent.
She concluded that the appellant had, by reason of sub letting contrary to the terms or conditions of occupation, become liable to be evicted in terms of section 105B.
Accordingly, she passed an order of eviction against the appellant.
This order was, on appeal, set aside by the appellate officer.
On appreciation of the evidence on record, including the terms of the relevant agreements, the appellate officer held that the agreement dated 27.3.1964, under which the second respondent occupied the premises, had been well known to the Corporation, and the Corporation, having satisfied itself as to the full implication and significance of that occupation, approved and recorded the assignment and transfer of the right, title and interest of Glenfied & Co. to the appellant, and recognised the appellant as the principal occupant.
The Corporation was thus at all material times aware of the appellant 's relationship with the second respondent and the occupation of the premises by the second respondent under the appellant.
Accordingly the appellate officer held that, in the absence of any material to show that the relationship between the appellant and the second respondent had so altered since the appellant 's agreement with the Corporation as to violate the terms or conditions of occupation, the eviction of the appellant solely on the ground of sub letting was unwarranted.
The reasoning of the appellate officer thus appears to be that the Corporation having allowed the transfer of the occupancy right of Glenfield & Co. to the appellant with the full knowledge of the terms and conditions under which the second respondent was already let into the premises by the appellant, whatever be the nature of their relationship whether it be a lease or licence the Corporation was estopped from now contending that the alleged sub letting was contrary to the terms or conditions of the appellant 's occupation of the premises and that the appellant had for that reason become liable to be evicted.
836 This is what the appellate officer stated on the point: ".
There is no allegation that after the tenancy was transferred in the name of the applicant,with the full knowledge and consent of the Municipal Corporation as to the terms and conditions on which the premises were occupied by the 2nd respondent, there has been any change in the nature of the 2nd respondent 's occupation of the part of the premises and also in the terms and conditions of the occupation.
Although the subsequent agreement was entered into between the appellants and the 2nd respondent, it was on the same terms and conditions as the first agreement which was produced before the ward officer before the transfer of tenancy in favour of the appellants . .
In this case, therefore, even if the agreement between the appellants and the 2nd respondent is interpreted as a sub tenancy agreement and under the said agreement the appellants are said to have sublet the premises to the 2nd respondent, the said subletting was prior to the transfer to tenancy in favour of the appellants and was with the full knowledge and consent of the Municipal Corporation: and, therefore, that cannot be considered to be subletting in breach of the agreement of tenancy so as to enable the Municipal Corporation to evict the appellants on that ground. " This is essentially a finding of fact.
The order of the appellate officer is final and is not ordinarily liable to be called in question (see section 105G).
Nevertheless, this finding was set aside by the High Court by the impugned judgment in exercise of its jurisdiction under Article 227 of the Constitution.
The High Court held: ".
Even otherwise, in our view, respondent No.1 was liable to be evicted under section 105B(1) clause (a) subclause (ii).
We are unable to agree with the finding given by the learned Principal Judge that no change in the circumstances under which the tenancy had been transferred in the name of respondent No. 1 has taken place after the grant of the lease and, therefore, the Corporation would be stopped from alleging that respondent No. 1 had sublet the premises. " The High Court thus held that the appellate officer was wrong in 837 saying that the circumstances had not altered so as to warrant an order of eviction on the ground or sub lease.
The High Court also held that the lease in favour of the appellant had been duly determined by the Corporation in terms of the contract, and the appellant having thus become an "unauthorised" occupant was as such liable to be evicted under clause (b) of sub section (1) of section 105B.
The High Court stated: ". . if a tenancy is terminated in accordance with terms of the tenancy agreement, it must be held to be duly terminated.
Such a person was liable to be evicted under the provisions of section 105B(1) of the Act.
" The Corporation has indeed the power to order eviction on the ground of sub letting which is contrary to the terms or conditions of occupation.
But it cannot be gainsaid that, when by specific agreement dated 17.6.1967 the Corporation recognised the assignment of all rights, title and interest made by Glenfield & Co. on 13.8.1966 in favour of the appellant in respect of the premises in question, and thus treated the appellant as the principal occupant, the Corporation was fully aware of the terms and conditions of the agreement dated 27.3.1964 under which the second respondent was already in occupation of the premises.
Nevertheless, the Corporation entered into the agreement dated 17.6.1967 accepting the appellant as the principal occupant in the place of Glenfield & Co. In the absence of any evidence to show that the relationship between the appellant and the second respondent has since altered so as to violate the terms of the agreement of occupation dated 17.6.1967.
It is not open to the Corporation to order eviction of the appellant on the ground of sub letting which is alleged to be contrary to the terms or conditions of occupation.
The High Court, in our view, wrongly reversed the finding of fact on that question by the appellate officer.
Whether the circumstances had changed or not was a question then is, whether, as found by the High Court,it is open to the Corporation to have recourse to clause (b) of sub section (1) of section 105B to order eviction of the appellant as an unauthorised occupant.
Is clause (b) attracted where eviction is sought to be made by determination of authority otherwise than in terms of the statute? Mr. V.M. Tarkunde, appearing for the appellant, submits that the appellate officer having found that the Corporation was, when it 838 entered into an agreement of occupation with the appellant on 17.6.1967, fully aware of the terms and conditions under which the second respondent was in occupation of the premises in question under the appellant, the High Court was not justified in upholding the eviction of the appellant on the very same ground.
The application of clause (b) of sub section (1) of section 105B, counsel says, is confined to persons in unauthorised occupation.
Persons in occupation of premises under authority are not liable to be evicted otherwise than on any one of the statutorily specified grounds.
Mr. S.B. Bhasme, appearing for the Corporation, submits that in view of the finding that the sub lease granted or renewed by the appellant was contrary to clause (6) of its agreement dated 17.6.1967 which provided. ". .I agree that this godown will not be assigned or sub let or allowed to be occupied by any person and if it or any part of it is assigned or sub let to any other party, I will be liable to be ejected immediately".
and also in view of clause (2) of the said agreement which reads: "Each party may terminate the tenancy at the end of any English Calendar month by giving to the other party one month 's notice in writing".
the appellant has, after the expiry of the period stipulated in the notice dated 25.7.1969, become an unauthorised occupant, and is liable to be evicted in terms of clause (b) of sub section (1) of section 105B of the Act.
According to Mr. Bhasme, the agreement under which the appellant occupied the premises has expired or has been duly determined by order of the competent authority.
Further continuance by the appellant is an unauthorised occupation so as to attract the provisions of section 105B.
Apart from the grounds mentioned in sub clauses (i), (ii), (iii) and (iv) of clause (a) of sub section (1) of section 105B, the Corporation is also empowered under clause (b) of sub section (1) of that section to evict any person whose authority to occupy has expired or has been duly determined and who thereafter remains in occupation of the premises.
The authority to occupy, he says, is duly determined even if the determination is sought to be founded on the ground of sub letting contrary to the terms and 839 conditions of occupation, or on any other ground specified in clause (a) or clause (c) of sub section (1) 105B, and that ground is subsequently held to be not proved and the order of eviction on that ground is accordingly found to be invalid.
This invalidity, according to counsel, is only as far as it related to the alleged ground.
Nevertheless, he says, such order determining authority to occupy is sufficiently efficacious to make further occupation 'unauthorised ', so as to attract clause (b) of sub section (1), provided the determination of authority can otherwise be justified in terms of the agreement of occupation.
In such circumstances, he says, clause (b) of sub section (1) is a potent weapon in the hands of the Corporation.
We shall now examine the relevant provisions.
Section 105A to section 105H of chapter VA were inserted in the Act in 1961 so as to provide for speedy eviction of persons in 'unauthorised occupation of Corporation premises.
Section 105A (d) defines 'unauthorised occupation ' in the following words: "(d) 'unauthorised occupation in relation to any corporation premises; means the occupation by any person of corporation premises without authority for such occupation; and includes the continuance in occupation by any person of the premises after the authority under which he was allowed to occupy the premises has expired, or has been duly determined.
" The definition shows that occupation of Corporation premises without authority for such occupation is an unauthorised occupation.
Such occupation includes continuance in occupation by a person after the authority under which he occupied the premises has "expired" or it has been "duly determined".
The definition thus includes not only a trespasser whose initial and continued occupation has never been under any valid authority, but it also includes in equal measure a person whose occupation at its commencement was under authority, but such authority has since expired, or, has been duly determined Which means validly determined.
The expiry of authority to occupy occurs by reason of the terms or conditions of occupation.
On the other hand, the determination of authority to occupy to be due or valid must be founded on one of the grounds specified by the statute.
Any order of eviction on the ground of either "expiry" or "due determination" has to be made in accordance with the procedure prescribed by the statute.
840 Section 105B, in so far as it is material, reads: "section 105B (1) Where the Commissioner is satisfied (a) that the person authorised to occupy any corporation premises has, whether before or after the commencement of the Bombay Municipal Corporation (Amendment) Act, 1960, (i) not paid for a period of more than two months, the rent or taxes lawfully due from him in respect of such premises; or (ii) sub let, contrary to the terms or conditions of his occupation, the whole or any part of such premises; or (iii) committed, or is committing, such acts of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises; or (iv) otherwise acted in contravention of any of the terms, expreses or implied, under which he is authorised to occupy such premises; (b) that any person is in authorised occupation of any corporation premises; (c) that any corporation premises in the occupation of any person are required by the corporation in the public interest.
the Commissioner may notwithstanding anything contained in any law for the time being in force, by notice (served by post, or by affixing a copy of it on the outer door or some other conspicuous part of such premises, or in such other manner as may be provided for by regulations), order that that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice.
(2) before an order under sub section (1) is made against 841 any person, the Commissioner shall issue, in the manner hereinafter provided, notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
The notice shall, (a) specify the grounds on which the order of eviction is proposed to be made, and (b) require all persons concerned that is to say, all persons who are or may be in occupation of, or claim interest in, the corporation premises, to show cause against the proposed order, on or before such date as is specified in the notice.
. . . . (3) If any person refuses or fails to comply with an order made under sub section (1), the Commissioner may evict that person and any other person who obstructs him and take possession of the premises; and may for that purpose use such force as may be necessary." (emphasis supplied) Clause (a) of sub section (1) of this section contains various grounds upon which a person is liable to be evicted.
Clause (b) says that unauthorised occupation itself is a ground for eviction.
Clause (c) provides that requirement in the public interest is a ground for eviction.
Sub section (2) speaks of show cause notice before an order of eviction by notice is made under sub section (1).
Sub section (3) has conferred sufficient power on the Commissioner to enforce an order of eviction made by him under sub section (1).
For the purpose of holding an enquiry under the Act, the commissioner is invested with all the powers of a Civil Court (section 105E).
An appeal lies from every order of the Commissioner under section 105B or section 105C to the appellate officer, namely, the Principal Judge of the City Civil Court of Bombay (section 105F), whose orders are final and not liable to be "called in question in any original suit, application or execution proceeding" (section 105G).
The satisfaction of the Commissioner, which is the condition precedent to the exercise of power of eviction by the summary procedure 842 prescribed by the Act, may be in respect of any of the circumstances falling under clauses (a), (b) or (c) of sub section (1) of section 105B.
Clause (a) contemplates eviction of any person on any one of the grounds mentioned in sub clauses (i) to (iv) thereof.
These grounds relate only to a person in authorised occupation of Corporation premises.
They have no application to a trespasser.
This is clear from the grounds themselves as well as from the wording of clause (a) which reads "that the person authorised to occupy. ".
Likewise, clause (c) presumably applied to authorised occupation of Corporation premises, which the Commissioner is empowered to terminate by ordering eviction of the occupant otherwise than on any of the grounds specified under clause (a), provided the Commissioner is satisfied that the premises in question are required by the Corporation in the public interest.
All that the Commissioner has to satisfy himself in a case falling under clause (c) is as regards the public interest requiring eviction.
Construction of parks, playgrounds, hospitals, colleges, markets, destitute homes and the like will indeed qualify for invoking the Commissioner 's power under clause (c), Clause (b), on the other hand, is a powerful weapon for eviction of an unauthorised occupant.
This clause is applicable equally to a trespasser as it is to a person whose occupation has ceased to be an authorised occupation by reason of expiry of authority in terms thereof or due determination of authority under clause (a) or clause (c) of sub section (1) of section 105B.
If a person is in occupation without authority, as in the case of a trespasser, or if the authority under which a person has been in occupation has expired in terms thereof and he continues to remain in occupation of the premises, he will be liable to be evicted on the ground mentioned in clause (b) of sub section (1) of section 105B, but in accordance with the procedure laid down in that section and on the satisfaction of the Commissioner, expressed by an order, as to the lack or expiry of authority.
It must however, be remembered that, except in the case of a trespasser or a person remaining in occupation even after the expiry of the period of authority, clause (b) can be invoked only where the Commissioner is satisfied and has so found be an order that any one of the grounds falling under clause (a) or clause (c) of sub section (i) for determination of authority has been established.
In the absence of such a valid order invoking clause (a) or clause (c), a person in occupation under authority, which has not expired, is not liable to be evicted under section 105B.
We do not accept Mr. Bhasme 's argument to the contrary on this point.
It is not the case of the Corporation that the authority under 843 which the appellant has been in occupation has expired in terms thereof.
That was not the basis upon which the enquiry was conducted and the order of eviction was made.
If that was the ground and that ground was rightly invoked, the position might well be different.
The specific ground upon which eviction was sought, as seen in the order of the enquiry officer and as categorically found by the High Court, was one of sub letting contrary to the terms or conditions of occupation.
No other ground, as the High Court says, was relied upon by the Corporation.
In the circumstances, the Commissioner (or his delegate) must be understood to have restricted the scope of the enquiry to the ground falling under clause (a) (ii) of sub section (1) of section 105B for the purpose of invoking the summary power of eviction vested in him under the statute.
Sub letting as such, without more, is not a ground for eviction under clause (a) (ii).
What attracts eviction in terms of that provision is sub letting which is contrary to the terms or conditions or occupation.
The appellate officer has found that the occupation of the premises by the second respondent under the appellant was well known to the Corporation; the terms and conditions of that occupation were closely scrutinised by the Corporation before recognising the transfer of rights and interest from the previous principal occupant to the appellant; and, it was on that basis and with that knowledge that the Corporation authorised the occupation of the premises by the appellant in terms of the agreement dated 17.6.1967.
In such circumstances, whatever right of occupation which the second respondent enjoyed under the appellant must be deemed to have been incorporated as a term of the authority granted by the Corporation in favour of the appellant.
The appellate officer has categorically found that there was no evidence whatsoever to indicate that the circumstances in which the premises had been occupied by the second respondent had in any manner, or at any time, altered so as to affect the terms or conditions under which the appellant was recognised as the principal occupant.
The Corporation is, accordingly on the facts found, stopped from having recourse to the ground falling under clause (a) (ii) of sub section (1) of section 105B.
As stated by the High Court, this was the only ground on which eviction was sought, and that ground, as found by the appellate officer, has not been established.
In proceedings under Article 227 of the Constitution, the High Court was not, in our view, justified in interfering with the finding of 844 fact rendered against the Corporation by the appellate officer.
Accordingly, we set aside the impugned judgement of the High Court and restore the order of the appellate officer.
This appeal is allowed in terms of what is stated above.
The parties shall, however, bear their respective costs.
N.V.K. Appeal allowed.
|
The original occupant of the suit godowns had on 1.10.1963 granted to the appellant a licence in respect of the premises and subsequently by a deed of assignment dated 13.8.1966 assigned all its rights, title and interest in the premises in favour of the appellant.
The appellant had in the meantime by agreement dated 27.3.1964 permitted the second respondent to store goods in the premises.
The appellant thereafter requested the Corporation to recognise it as the principal occupant of the premises by means of a formal agreement.
This request was at first rejected by the Corporation on the ground that the second respondent, had been already in occupation of the premises.
Subsequently the Corporation examined the terms and conditions of the agreement dated 27.3.1964 and after satisfying itself the Corporation transferred the occupancy right to the appellant on the appellant executing a formal agreement dated 17.6.1967.
A notice dated 25.7.1969 terminating tenancy in terms of the agreement dated 17.6.1969 was served on the appellant.
This was followed by an enquiry under the Bombay Municipal Corporation Act 1888 which resulted in the order of eviction dated 6.1.1971, the appellant being the principal tenant and the second respondent as a sub tenant.
The enquiry officer, acting as a delegate in terms of section 68 and exercising the power of Commissioner of the Municipal Corporation of Greater Bombay, the first respondent under section 195B, ordered eviction of the appellant on the ground of sub letting the premises.
The enquiry officer, on inspection, found that the second respondent was in occupation of the premises as a sub lessee that the appellant 830 had sub let the premises contrary to the terms of the conditions of occupation and had thus become an unauthorised occupant liable to be evicted from the premises in terms of section 105B, and passed an order of eviction against the appellant.
This order was, on appeal, set aside by the appellate officer, on appreciation of the evidence and the terms of the agreements, the appellate officer held that the agreement dated 27.3.1964, approved and recorded the assignment and transfer of the right, title and interest of the original occupant to the appellant, and recognised the appellant as the principal occupant, and that the Corporation was at all material times aware of the appellant 's relationship with the second respondent and the occupation of the premises by the second respondent under the appellant.
The eviction of the appellant solely on the ground of sub letting was therefore unwarranted.
The High Court in exercise of its jurisdiction under Article 227 of the Constitution held that the appellate officer was wrong in saying that the circumstances had not altered so as to warrant an order of eviction on the ground of sub lease, and that the lease in favour of the appellant had been duly determined by the Corporation in terms of the contract, and the appellant having thus become an "unauthorised" occupant was as such liable to be evicted under clause (b) of sub section (1) of section 105B.
The High Court accordingly set aside the order made by the appellate officer under section 105B and restored the order of eviction made under section 105B by the Enquiry Officer.
In the appeal to this Court it was submitted on behalf of the appellant that persons in occupation of premises under authority are not liable to be evicted otherwise than on any one of the statutorily specified grounds, and that the application of clause (b) of sub section (1) of section 105B, is confined to persons in unauthorised occupation, and that the appellate officer having found that the Corporation when it entered into an agreement of occupation with the appellant on 17.6.1967 fully aware of the terms and conditions under which the second respondent was in occupation of the premises under the appellant, the High Court was not justified in upholding the eviction of the appellant on the very same ground.
On behalf of the respondent No. 1 Corporation it was submitted that in view of the finding that the sub lease granted or renewed by the appellant was contrary to clauses (6) and (2) of the agreement dated 17.6.1967 the appellant has, after the expiry of the period stipulated in 831 the notice dated 25.7.1969, become an unauthorised occupant, and is liable to be evicted in terms of clause (b) of sub section (1) of section 105B.
On the question: whether it is open to the Corporation to have recourse to clause (b) of sub section (1) of section 105B to order eviction of the appellant as an unauthorised occupant, and whether clause (b) is attracted where eviction is sought to be made by determination of authority otherwise than in terms of the statute.
Allowing the appeal, the Court, HELD: 1.
Section 105A to section 105H of Chapter VA were inserted in the Act in 1961 to provide for speedy eviction of persons in unauthorised occupation of Corporation premises.
(839C) Section 105A(d) defines 'unauthorised occupation '.
This definition shows that occupation of Corporation premises without authority for such occupation is an unauthorised occupation.
Such occupation includes continuance in occupation by a person after the authority under which he occupied the premises has "expired" or it has been "duly determined".
the definition thus includes not only a trespasser whose initial and continued occupation has never been under any valid authority, but it also includes in equal measure a person whose occupation at its commencement was under authority, but such authority has since expired, or, has been duly determined Which means validly determined.
The expiry of authority to occupy occurs by reason of the terms or conditions of occupation.
On the other hand, the determination of authority to occupy to be due or valid must be founded on one of the grounds specified by the statute.
Any order of eviction on the ground of either "expiry" or due determination" has to be made in accordance with the procedure prescribed by the statute.
[839D H] 3.
Clause (a) of sub section (1) of section 105B contains various grounds upon which a person is liable to be evicted.
Clause (b) says that unauthorised occupation itself is a ground for eviction.
Sub section (2) speaks of show cause notice before an order of eviction by notice is made under sub section (1).
Sub section (3) has conferred sufficient power on the Commissioner to enforce an order of eviction made by him under sub section (1).
For the purpose of holding an enquiry under the Act, the Commissioner is invested with all the powers of a Civil Court (Section 105E) An appeal lies from every order of the Commissioner 832 under section 105B or section 105C to the appellate officer, namely the Principal Judge of the City Civil Court of Bombay (section 105F), whose orders are final and not liable to be "called in question in any original suit, application or execution proceeding" (Section 105G).
[841E G] 4.
The satisfaction of the Commissioner, which is the condition precedent to the exercise of power of eviction by the summary procedure prescribed by the Act, may be in respect of any of the circumstances falling under clauses (a), (b) or (c) of sub section (1) of section 105B.
Clause (a) contemplates eviction of any person on any one of the grounds mentioned in sub clauses (i) to (iv) thereof.
These grounds relate only to a person in authorised occupation of Corporation premises.
They have no application to a trespasser.
[841H 842B] 5.
Likewise, clause (c) presumably applies to authorised occupation of Corporation premises, which the Commissioner is empowered to terminate by ordering eviction of the occupant otherwise than on any of the grounds specified under clause (a), provided the Commissioner is satisfied that the premises in question are required by the Corporation in the public interest.
All that the Commissioner has to satisfy himself in a case falling under clause (c) is as regards the public interest requiring eviction.
Construction of parks, playgrounds, hospitals, colleges, markets, destitute homes and the like will indeed qualify for invoking the Commissioner 's power under clause (c).
[842C] 6.
Clause (b) is a powerful weapon for eviction of an unauthorised occupant.
This clause is applicable equally to a trespasser as it is to a person whose occupation has ceased to be an authorised occupation by reason of expiry of authority in terms thereof or due determination of authority under clause (a) or clause (c) of sub section (1) of section 105B. [842D] 7.
If a person is in occupation without authority, as in the case of a trespasser, or if the authority under which a person has been in occupation has expired in terms thereof and he continues to remain in occupation of the premises, he will be liable to be evicted on the ground mentioned in clause (b) of sub section (1) of section 105B, but in accordance with the procedure laid down in that section and on the satisfaction of the Commissioner, expressed by an order, as to the lack or expiry of authority.
[842E F] 8.
Sub letting as such, without more, is not a ground for eviction 833 under clause (a) (ii).
What attracts eviction in terms of that provision is sub letting which is contrary to the terms or conditions of occupation.
[843C] In the instant case, the appellate officer has found that the occupation of the premises by the second respondent under the appellant was well known to the Corporation; the terms and conditions of that occupation were closely scrutinised by the Corporation before recognising the transfer of rights and interest from the previous principal occupant to the appellant; and, it was on that basis and with that knowledge that the Corporation authorised the occupation of the premises by the appellant in terms of the agreement dated 17.6.1967.
In such circumstances, whatever right of occupation which the second respondent enjoyed under the appellant must be deemed to have been incorporated as a term of the authority granted by the Corporation in favour of the appellant.
The appellate officer has categorically found that there was no evidence whatsoever to indicate that the circumstances in which the premises had been occupied by the second respondent had in any manner, or at any time, altered so as to affect the terms or conditions under which the appellant was recognised as the principal occupant.
The Corporation is, accordingly on the facts found, estopped from having recourse to the ground falling under clause (a) (ii) of sub section (1) of section 105B. [843D G] 9.
In proceedings under Article 227 of the Constitution, the high Court was not justified in interfering with the findings of fact rendered against the Corporation by the appellate officer.
[843H 844A]
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Appeal Nos.
491 544 of 1991.
From the Judgement and Order dated 12.12.1990 of the Bombay High Court in W.P. Nos.
2646, 2659, 2651, 2649, 2657, 2664, 2648, 2647, 2666, 2658, 2662, 2663, 2667, 2665, 2691, 2693, 2694, 4091, 4098, 4155, 2743, 2789, 2791, 2790, 2740, 4290, 2824, 2858, 2848, 3052, 2863, 2848, 2844, 2843, 2832, 2852, 4846, 4844, 3312, 5101, 5102, 3313, 3207, 3064, 3005, 3335, 3188, 5123, 3514 and 4844 of 1990.
T.R. Andhyarujana, S.N. Wakharia, P.H. Parekh, D.Y. Chandrachud and Ms. Shalini Soni for the Appellant.
P. Chidambaram, Arun Jaitley, I.R. Joshi, M.N. Shroof, Ms. Indu Malhotra, Ms. Alka Mukhija, Harish N. Salve, Ms. Shireen Jain, J.P. Cama, Mukul Mudgal, Mrs. Urmila Sirur, Dileep Pillai, P. Kesava Pillai, Kailash Vasdev and Vimal Dave for the Respondents.
The Judgement of the Court was delivered by K. RAMASWAMY, J. We have heard the learned counsel on either side and grant special leave to appeal in all the cases.
The quest for just result to save the precious academic years to the students while maintaining the unsullied examination process is the core problem which the facts have presented for solution.
The appeals arise from the common judgement of a Division Bench of the Bombay High Court in Writ Petition No. 2646 of 1990 and batch.
The appellant for short 'the Board ' conducted secondary examinations in the month of March 1990, whereat the marks awarded, after the formalities of valuation by the examiners of the answer sheets in each subject; the random counter check by the moderators and further recounting at the Board, Moderators ' mark sheets sent to Pune for feeding the computer to declare the results were found tampered with the appellant.
Thereon, admittedly, it was found that moderators ' mark sheets relating to 283 examinees which include 53 respondents in these appeals were tampered, in many a case in more than 2 to 8 subjects, and in few cases in one subject.
As a result, 214 examinees have improved their ranking, which would be in some cases exceptionally good.
The declaration of their results were 780 withheld pending further enquiry and the rest declared on June 30, 1990.
Several writ petitions were filed in the High Court against non declaration of the results and the High Court directed to take expeditious action to declare the results of the examination within the specified time.
The Board appointed seven enquiry officers to conduct the enquiry.
Show cause notices were issued to the students on July 30, 1990 informing them of the nature of tampering, the subjects in which the marks were found tampered with, the marks initially obtained and the marks increased due to tampering, and also indicated the proposed punishment, if in the enquiry it would be found that marks were tampered with the knowledge or connivance or at the instance of the candidates or parents or guardians.
They were also informed that they would be at liberty to inspect the documents at the Divisional Board at Bombay.
They were entitled to adduce documentary and oral evidence at the hearing.
They will also be permitted to cross examine the witnesses of the Board, if any.
They would not be entitled to appear through an Advocate, but the parents or guardians would be permitted to accompany the students at the time of enquiry, but they are not entitled to take part in the enquiry.
The candidates submitted their explanations denying the tampering and appeared before the Enquiry Officers on August 8, 9, 10, 20, 21 and 22, 1990.
At the enquiry, each student inspected the record.
A questionnaire was given to be filled in writing.
Every candidate was shown his answer book, marks awarded in the subject/subjects and the tampered marks in the moderators ' mark sheets.
All the candidates admitted that the marks initially awarded by the examiner were tampered in the moderators mark sheets; due to tampering the marks were increased and the increase was to their advantage.
However, they denied that either they or their parents or guardians were privy to the tampering.
The Enquiry Officers submitted their reports holding that the moderators mark sheets have been fabricated and submitted the reports to the Board.
The Standing Committee constituted in this regard considered the records and the reports on August 29, 1990, discussed pros and cons and expressed certain doubts about the possibility of the candidates/parents/guardians committing fabrication.
They sought for and obtained legal opinion in that regard.
On August 30, 1990 the standing committe resolved to with hold, as a measure of punishment, the declaration of the results of their examinations and to debar the 283 students to appear in the supplementary examination to be held in October, 1990 and March, 1991.
The notification was published on August 31, 1990 and submitted the report to the High Court.
There after the High Court considered the cases on merits.
The learned Judges by separate but concurrent judgements allowed the writ petitions.
781 Sugla, J. held that the Standing Committee of the Divisional Board under the Maharashtra Secondary and Higher Secondary Education Board Act of 1965 for short 'the Act ' was devoid of power.
It did not obtain the approval of the Divisional Board, and therefore, the impugned notification was without authority of law.
On merits also it was held that the Standing Committee did not apply its mind in the proper perspective to the material facts.
Therefore, the finding that tampering was done at the instance of the examinees/parents/guardians is perverse.
Bharucha, J. without going into the jurisdictional issue agreed with Sugla, J. and held that the preponderance of the probabilities would show that the examinees were not guilty of the malpractices.
The guilt has not been established.
The examinees might well be innocent.
Accordingly, the impugned notification dated August 31, 1990 was quashed.
Mandatory injunction was issued to Board to declare the results of 253 examinees within two weeks from the date of the judgement and marks were directed to be communicated to the examinees within a period of two weeks thereafter.
The admitted facts are that the mark sheets of the examiners were not tampered.
Only the moderators ' mark sheets were tampered.
As per the procedure, after the marks were scrutinized at the State Board and found the marks tallied and to be correct, the moderators ' mark sheets were sent to the computer at Pune, obviously in sealed packets, for feeding the results.
After the date of recounting the marks in the office of the State Board at Bombay and before the d ate of taking them to feed the computer, moderators ' mark sheets, were tampered.
The individual students were put on notice of the marks they originally obtained and the tampered marks in the subject/subjects concerned.
They were also given the opportunity to lead evidence on their behalf and if the witnesses were examined on behalf of the Board they would be permitted to cross examine them.
They inspected the records.
The questionnaire given to all the examinees at the enquiry were before us at the hearing including the 53 respondents in the appeals.
We have persued the questionnaire.
It is clear from the answers given to the questionnaire that all the examinees admitted the marks they originally got and the tampered marks on the moderators ' mark sheets.
They also admitted that the tampering was to their advantage.
Everyone denied the complicity of either of the candidates or the parents or the guardians.
Thus it is clear that at the enquiry there is no dispute that the moderators ' mark sheets were tampered, though the candidates, obviously and quite expectedly, denied their complicity in that regard.
Due to tampering 214 would have been passed and 69 accelerated their ranking and percentage to seek admis 782 sion into prestigious institutions.
The racket of large scale tampering wading through 80,000 moderators ' mark sheets obviously was done by concerted action.
It is clear that from large body of moderators ' mark sheets, it is not possible to pick the marks sheets of the concerned examinee alone unless there is concerted and deliberate efforts, in conspiracy with some members of the staff entrusted with the duties in this regard, for illegal gratification.
It is also not an innocent act of mere corrections as is sought to be made out by Sri Chidambaram, the learned counsel for the respondents.
We have no manner of doubt that unfair means were used at the final Secondary Examination held in March 1990, by fabricating the Moderators ' mark sheets of 283 examinees, in a concerned manner, admittedly, to benefit the students concerned.
The first question, therefore, is whether the Standing Committee of the concerned Divisional Board has power under the Act and Regulations to enquire into the use of unfair means committed at the final examination conducted under the Act.
Section 4 of the Act declares that the State Board of Secondary and Higher Secondary Education is a body corporate.
Section 18 enumerates the powers and duties of the State Board.
Clause (t) of Sec.
18 empowers the Board to make regulations for the purpose of carrying into effect the provisions of the Act.
Clause (g) empowers the Board to give to the candidates certificates after passing final examination.
Clause (m) empowers to recommend measures and to prescribe conditions of discipline.
Clause (w) gives residuary power to do all such acts and things as many be necessary to carry out the purposes of the Act.
Section 19 gives powers and entrust duties to the Divisional Board of each division.
Clause (f) postulates, "to conduct in the area of its jurisdiction the final examination on behalf of the State Board.
" Clause (1) provides, "to deal with cases of use of unfair means according to the procedure laid down by the State Board.
" Section 23 provides that power of appointments of the Committees by the State Board.
Sub Section (2) thereof provides that: "The State Board may appoint such other Committees as it thinks necessary for the efficient performance of its functions." Equally sub section (3) of Sec.
23 empower thus: "Each Divisional Board shall appoint Committees designated as follows: (d) Examination Committee.
783 Sub Section (5) states thus: "The constitution of every committee appointed by the State Board or a Divisional Board, the term of office of its members and the duties and functions to be discharged by it shall be such as may be prescribed.
" Section 36 empowers the State Board to make regulations for the purpose of carrying into effect the provisions of the Act.
Sub section (2) thereof states that: "In particular and without prejudice to the generally of the foregoing power, such regulations may provide for all or any of the following matters, namely: (a) the constitution, powers and duties of the Committees.
appointed under section 23; . . (f) the arrangement for the conduct of final examinations by the Divisional Board and publication of results; . . (n) any other matter which is to be or may be prescribed under this Act.
" Sub section (3) provides: "No regulation made under this section shall have effect until the same has been sanctioned by the State Government" Thus it is clear that the State Board is empowered to constitute the Divisional Boards and the Standing Committees.
The State Board is also empowered to make regulations to conduct examinations and also to deal with the use of unfair means at the final examination conducted by the Board.
The Divisional Board is empowered to conduct within its area the final examinations on behalf of the State Board.
The Divisional Board is also empowered to deal with the cases of unfair means according to the procedure laid down by the State Board.
The State Board made regulations named as Maharashtra Secondary and Higher Secondary Education Board Regulations 1977 which came into force with effect from July 11, 1977.
Regulation 9(2) (xviii) read thus: 784 "to lay down the procedure and specify the penalties to be followed by the Divisional Boards, in dealing with cases of use of unfair means by persons seeking admission to or appearing at the examinations conducted under the authority of the State Board.
" Under Regulations 14 the Standing Committee of the Divisional Board was to be constituted under sub regulation (1) thereto.
Sub regulation (2) provides: "Subject to the provisions of the Act and the Regulations, the Standing Committee shall have the following duties and functions, namely . . (x) to deal with cases of use of unfair means by persons seeking admission to or appearing at the final examinations, according to the procedure laid down by the State Board.
" By a resolution passed at the meeting of the State Board held on October 26, 1985, Exhibit 'z ' provides the procedure for enquiry.
Clause 3(f) defines 'misconduct ' as follows: "Misconduct" shall mean any illegal or wrongful act or conduct which is alleged to have been resorted to by any candidate and/or any member of staff, at, for or in respect of the final examination and, without prejudice to the generality of the foregoing, shall include. . tampering with the documents issued by the Board or otherwise howsoever changing a candidate 's results in any manner whatsoever and generally acting in such a manner so as to affect or impede the conduct of the final examinations and fair declaration of results thereof.
" Clause (4) empowers to conduct an enquiry either suo moto or on a complaint about any misconduct and the procedure in that regard so that the Chairman of the Divisional Board may entrust the enquiry into the alleged misconduct to any member or members of the Divisional Board other than the members of the Standing Committee.
Clause (5) empowers to entrust the enquiry.
The Enquiry Officer shall give a notice in writing to the candidate . setting forth the nature of the misconduct alleged against the candidate and call upon the candi 785 date to show cause within the time specified therein.
It also empowers to set out the punishment proposed to be imposed on a candidate.
Clause 5(b) gives an opportunity to the candidates to inspect the relevant documents proposed to be relied upon at the enquiry.
Clause 6 gives opportunity to the delinquent to submit an explanation; to produce his witnesses as well as documentary evidence and to be heard in person, if he/she so desires, but shall not be entitled to be represented by an Advocate or any other persons.
The delinquent shall be bound to answer truthfully to all questions relevant to the subject of enquiry that may be put to him/her by the Enquiry Officer .
Clause (10) provides that the concerned Enquiry Officer shall submit the report in writing including the findings and the proposed punishment.
Clause 11 provides thus: "The Standing Committee shall consider the report and decide the case as it may deem fit.
The Standing Committee will take the decision in the same meeting.
" Clause (12) states thus: "The Standing Committee shall not be bound to give detailed reasons in support of its order or decision but shall record its reasons if it disagrees with the findings of recommendations of the inquiry officer and under such circumstances the Standing Committee need not give hearing to the delinquent concerned." Other clauses are not relevant for the purpose of this case.
Hence omitted.
The Board also in its meeting held on October 26, 1985 framed rules in Appendix 'A ' providing under different heads the nature of the offence and the quantum of punishment, the relevant item 16 reads thus: "Tampering with the Secondary/Higher Secondary School Certificate and/or statement of marks or their copies and any other documents issued by the Board.
" Cancellation of performance of the Examination and debarring the candidate for five more examinations and/or to lodge complaint by the concerned institution/Authority to Police Department.
Thus a conspectus of these relevant provisions of the Act, regulations 786 and resolutions clearly cover the entire field of operation regarding the use of unfair means at the final examinations specified the competent authorities and the procedure to deal with the same.
The Divisional Board undoubtedly has been empowered under Sec.
19 of the Act to deal with the use of unfair means at the final examination.
It may be made clear at this juncture that the Standing Committee consists of six members of the Divisional Board and none of them associated with the enquiry.
Enquiry Officers are also the members of the Divisional Board.
The regulations provide the procedure in this regard.
It is undoubtedly true as contended by Shri Chidambaram, that the Act empowers the Divisional Board to deal with the use of unfair means at the final examination.
But to give acceptance to the contention that the Standing Committee is an alien body to the Divisional Board is to do violence to the scheme of the Act and Regulations.
It is seen that under the scheme of the Act and Regulations the State Board is empowered to constitute the Standing Committee.
Equally the Divisional Board is empowered to constitute the committees which include the Examination Committee.
The members thereof are only members of the Divisional Board.
Equally the Inquiry Officers are also the members of the Divisional Board other than the members of the Education Standing Committee.
The Standing Committee is an executive arm of the Divisional Board for the efficient and expeditious functioning of the Board as adumbrated under the Act itself.
It is not a foreign body.
Therefore, when the Divisional Board is acting in conducting the examinations and dealing with the use of unfair means at the final Examination, it is acting on behalf of the State Board as its agent.
When the enquiry was conducted by some members and the Standing Committee was taking the decision thereon, it is acting on behalf of the Divisional Board.
There is no dichotomy but distribution of the functions.
Therefore, when the Standing Education Committee takes the decision its decision is on behalf of the Divisional Board to which they are members and the decision of the Divisional Board to which they are members and the decision of the Divisional Board in turn is on behalf of the State Board.
This is the integral scheme woven by the Act and Regulations.
Thus under the scheme of the Act, for the efficient and expeditious function of the concerned Boards; implementation of the provisions of the Act, and to prevent use of unfair means at the final examination including tampering the result of the examination, the Standing committee is clearly within its power to take final decision.
On a fair and harmonious reading of the relevant provisions and given their due scope and operational efficiency, we are of the considered view that the Examination Standing Committee of the Divisional Board itself a statutory body acted on behalf of the Divisional Board and is not a delegate of the Divisional Board.
787 In State of U.P. vs (Batuk Deo Pati Tripathi & Anr.,) the respondent was appointed as a Munsif in the State Judicial Service and was later promoted as a District Judge.
The Administrative Committee of the High Court reviewed the service and the Committee recommended to the State Government and communicated to all the Judges of the recommendation to compulsarily retire the respondent from service.
The Govt.
accordingly retired the respondent compulsarily which was challenged in a writ petition.
A Full Bench of the Allahabad High Court held that the District Judge cannot be retired from service on the opinion formed by the Administrative Committee and all the Judges should have considered and made recommendation.
Accordingly, the order was set aside.
On appeal, the Constitution Bench of this Court held that article 235 of the Constitution provides control over the District Judges and the Court subordinate thereto shall be vested in the High Court.
It is open to the High Court to make rules to exercise the power of control feasible, convenient and effective.
Accordingly the High Court regulated the manner of appointment of a Committee to screen the service record.
Thus, the rules framed prescribed the manner in which the power has to be exercised.
Truely, it is regulatory in character and the powers were exercised by the Committee and recommended to the State Govt.
to compulsarily retire the respondent and it amounts to taking a decision on behalf of the High Court.
In (Khargram Panchayat Samiti vs State of West Bengal & Ors.,) [1987] 3 SCC 82 at p. 84 the facts were that the cattle fairs run by the two rival organisations would be held on specified different dates which were impugned in the jurisdiction to pass such a resolution.
The High Court held that the Samiti was vested with power to grant licence to hold the fair under Sec. 117 of West Bengal Panchayat Act, 1973.
In the absence of any rules framed in that regard it had no power to specify dates on which such Hat or fair shall be held.
While reversing the High Court 's judgement, this Court held that the general administration of the local area vested in the Samiti which had power to grant licences to held fair or hat under Sec. 117 of the Act.
Necessarily it carries with it the power to supervise, control and manage such a hat or fair within its territorial jurisdiction.
The conferment of the power to grant a licence for holding of a hat or a fair includes the power to make incidental or consequential order for specification of a date on which such a Hat or fair shall be held.
Accordingly, the resolution of the Samiti was upheld.
In (Baradakanta Misra,) vs (High Court of Orissa & Anr.,) [1976]B Suppl.
SCR 561 relied on by Sri Chidambaram, the facts were that then appel 788 lant while acting as a District Judge, an enquiry into certain charges was held against him, and was reduced to Addl.
District Magistrate (Judicial).
He refused to join the duty.
Fresh proceedings were initiated against him and after enquiry the High Court dismissed him on the ground that he was convicted on a charge of a criminal attempt.
An appeal was filed to the Governor and a Writ petition followed thereafter filed in the High Court were dismissed, while allowing the appeal filed under Article 136.
The scope of the words "control" and "deal" used in Article 235 were interpreted at page 576 P&G and held that the word 'control ' includes something in addition to the disciplinary jurisdiction.
The control is with regard to conduct and discipline of the District Judges and Subordinate Courts and includes right to appeal against the order of the High Court in accordance with the condition or service includes an order passed thereon.
The word 'deal ' also includes the control over disciplinary and not mere administrative jurisdiction.
The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including initial posting and promotion of the District Judge and dismissal, removal and reduction in rank of the District Judges within the exercise of the control vested in the High Court.
The High Court can hold enquiries, impose punishments other than dismissal or removal subject, however, to the conditions of service to a right of appeal, if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by Clause (2) of article 311 unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.
The High Court alone could make enquiries into disciplinary conduct.
It was held that the High Court had no jurisdiction to dismiss the District Judge.
Accordingly it was quashed.
That ratio has no application to the facts in this case since the Act, Regulations and the Resolutions empowered the Divisional Board and its Standing Committee to deal with use of unfair means at final examinations including fabrication of documents issued by the Board as an integral part of the power of the Divisional Board.
Similarly, the ratio in (Taj Pal Singh (dead) through Lrs) vs State of U.P. & Anr., also is inapplicable to the facts of this case.
In that case, the facts were that while the appellant was working as the District and Sessions Judge, the Stage Govt.
moved the High Court to his premature retirement.
The Administrative Judge agreed with Government 's proposal to retire the appellant after giving him three months ' notice, the Governor passed the impugned order compulsorily retiring the appellant.
Three days thereafter the Administrative Committee had approved the opinion of the Administrative Judge which was transmitted to the Government.
789 Assailing the action of the Government the writ petition was filed which was dismissed by the High Court, but on appeal this Court held that the Administrative Judge was not competent to recommend to the Governor or compulsorily retire the District and Sessions Judge and the order of the Government made pursuant thereto was declared illegal.
This Court reiterated that the High Court has power under article 235 to make rules for its administrative convenience, but since the impugned action was not in pursuance of that rule, the action was not upheld.
That ratio also renders little assistance to the respondents for the reasons that the Standing Committee, as stated earlier is an integral part of while exercising the powers, under article 226 or article 136 of the Constitution, by the High Court or of this Court, are not sitting Committees (domestic enquiry body), nor have power to evaluate the evidence as an appellate Court and to come to its own conclusions.
If the conclusions reached by the Board can be fairly supported by the evidence on record then the High Court or this Court has to uphold the decision, though as appellate Court of facts, may be inclined to take different view.
The contention of M/s. Chidambaram, Jaitley, Salve and Cama, the learned counsel for the students, is that the students were minors; neither the parents nor anybody like an Advocate was permitted to assist the students.
Answers to the questionnaire were extracted from the students to confess their guilt.
No adequate opportunity was given to the students at the enquiry.
No one on behalf of the Board acquainted with the Divisional Board.
Accordingly the Board must be deemed to have passed the impugned notification as per the scheme of the provisions of the Act and the Regulations.
Therefore, the finding of the learned Judge Sugla, J. that the Standing Committee had no power to take the impugned decision, etc.
without approval of the Divisional Board is clearly illegal and cannot be sustained.
The question then is whether the candidates or their parents or guardians are privy to the fraudulent fabrication.
Since we are informed that investigation in this regard by the Police is in progress, we refrain to express any final opinion in this regard.
Suffice to state that the records clearly establish that there was a fraudulent fabrication of the moderators ' marks sheets of 283 candidates including the respondents herein.
The question, therefore, emerges whether the conclusion reached by the Standing Committee that the fabrication was done at the behest of either the candidate or the parents or the guardians to 790 their advantage is based on records.
We remind ourselves that the facts was examined to explain as to how the moderators ' sheets were dealt with after the board screened the marks, but before taking to Pune to feed the computer, nor an opportunity was given to cross examine them.
The evidence without subjecting it to cross examination is of no value.
Enquiry report is not a report in the eye of law.
It does not contain any statement of facts, nor reasons recorded.
It merely records conclusions.
When seven members were appointed it is not expected that all of them would submit uniform stereo typed reports to the Standing Committee.
The Standing Committee did not apply its mind to the facts, nor recorded reasons in support of its conclusions that the examinees/parents/guardians were parties to the fabrication and the fabrication was done at their behest.
Sri Chidambaram further contended that the Board should establish the guilt of the examinees beyond all reasonable doubts.
Shri Jaitley, Sri Cama and Sri Salve though did not support Sri Chidambaram that the standard of proof must be beyond all reasonable doubt, they argued that Standard of proof must be a high degree akin to trial in a criminal case.
The Board did not discharge its duty, on the other hand the Board had presumed that fabrication was done for the benefit of the examinees.
The test of benefit to an examinee is preposterous.
There is no presumption that the fabrication was done at the behest of either the examinees/parents/guardians.
It must be established by the Board as of fact that the examinees/parents/guardians were responsible for fabricating the Moderators ' mark sheets.
Thus no evidence was placed on record, nor wait proved; that, therefore, the findings of the Standing Committee are clearly based on no evidence.
The learned Judges of the High Court were justified in reaching the conclusion that the Board had not established that the fabrication was done at the behest of the examinees/parents/guardians.
This was resisted by Sri T.R. Andhyarujana, learned counsel appearing for the Board.
It was his contention that all the examinees admitted in answers to the questionnaire that tampering was done and it was to their advantage.
In view of the admission, the need to examine any person from the concerned section was obviated.
Fabrication cannot be done except to benefit the examinees.
The fabricator had done it for reward in concert with outside agencies.
Therefore, the inference from these facts drawn by the Standing Committee that the examinees/parents/guardians were responsible to fabricate the moderators ' marks sheets is based on evidence.
Proper enquiry was conducted giving reasonable opportunity to the candidates.
Show cause notices set out the material facts on which the Board intends to place reliance.
The examinees submitted their explanations and also answered the questionnaire.
On consideration 791 thereof the Standing Committee had reached the conclusions of the guilt of the examinees/parents/guardians.
This is based on record.
It is not open to High Court to evaluate the evidence to come to its own conclusions.
Thereby the High Court has committed manifest error of law warranting interference by this Court.
article 51A of the Constitution enjoins every citizen, as a fundamental duty, to promote harmony and spirit of common brotherhood among the people, to develop the scientific temper, humanism and the spirit of inquiry and reform; to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
article 29(2) declares education as fundamental right.
The native endowments of men are by no means equal.
Education means a process which provides for intellectual, moral and physical development of a child for good character formation; mobility to social status; an opportunity to scale equality and a powerful instrument to bring about social change including necessary awakening among the people.
According to Bharat Ratna Dr. Ambedkar education is the means to promote intellectual, moral and social democracy.
In D.M.K. Public School vs (Regional Joint Director of Hyderabad,) AIR 1936 (A.P.) 204 one of us (K. Ramaswamy, J.) held that education lays foundation of good citizenship and a principal instrument to awaken the child to intellectual and cultural pursuits and values in preparing the child for latter professional training and help him to adjust to the environment.
In nation building activities, education is a powerful level to uplift the poor.
Education should, therefore, be co related to the social, political or economic needs of our developing nation fostering secular values breaking the barriers of casteism, linguism, religious bigotry and it should act as an instrument of social change.
Education system should be so devised as to meet these realities of life.
Education nourishes intellectual advancement to develop dignity of person without which there is neither intellectual excellence nor pursuit of happiness.
Education thus kindles its flames for pursuit of excellence, enables and ennobles the young mind to sharpen his/her intellect more with reasoning than blind faith to reach intellectual heights and inculcate in him or her to strive for social equality and dignity of person.
Teacher occupies pride of place next below the parents as he/she imparts education and disciple the students.
On receiving salary from public exchequer he/she owes social responsibility and accountability 792 to disciple the students by total dedication and sincere teaching.
It would appear that their fallen standards and rectitude is also a contributory factor to the indiscipline among the students.
The students, too, instead of devoting his or her precious time to character building and to pursue courses of study studiously and diligently in the pursuit of knowledge and excellence, dissipate their precious time and many indulge in mass copying at the final examinations or use unfair means.
Some even do not hesitate to threaten the dutiful invigilators with dir consequences.
In G.B.S. Omkar vs Shri Venkateswara University, AIR 1981 A.P. 163 P.A. Choudhary, J., in the context of finding the student guilty of mal practices held, that "I regretfully note that standards of discipline and education presently detaining in many Universities in our country leave a good lot to be desired.
They are low and falling lower every day.
the fall out of these low standards of university education on liberal profession is proving to be nearly catastrophic . .
It is no wonder that some of our Universities have ceased to be centres of learning and have grown into battle fields for warring Caste groups.
" It was held that what the Writ Court under article 226 need to consider is whether fair opportunity had been given to a petitioner and he had been treated squarely and whether the student had a fair deal with the University.
Once the procedural formalities are complied with, in the absence of any allegation of mala fide, it must be presumed that the University had acted bona fide and honestly so long as there is the evidence justifying the inference arrived at without there being a serious procedural irregularity.
The Writ Court would not interfere with an order of educational institution.
Therefore, what the writ court needs to do is to find whether fair and reasonable opportunity has been given to the students in the given facts.
From this background the question emerges whether the impugned notification is vitiated by any procedural irregularity under the provisions of the Act, regulations and the Resolutions referred hereinbefore or violative of the principles of natural justice.
The students involved at the examination of secondary education are by and large minors but that by itself would not be a factor to hold that the students were unfairly treated at an inquiry conducted during the domestic inquiry.
Assistance of an Advocate to the delinquent at a domestic enquiry is not a part of the principles of natural justice.
It depends on the nature of the inquiry and the peculiar circumstances and facts of a particular case.
The regulations and the rules of enquiry 793 specifically excluded the assistance of an Advocate at the inquiry.
Therefore, the omission to provide the assistance of a counsel at the inquiry is not violative of the principles of natural justice.
The show cause notice furnished wealth of material particulars on which the tampering was alleged to be founded and given the opportunity to each student to submit the explanation and also to adduce evidence, oral or documentary at the inquiry.
Each student submitted the explanation denying the allegation.
At the inquiry the questionnaire in the proforma was given to each student.
It is undoubted that the allegation of fabrication was stated to have been done at the behest of either the student/parents or guardians and the parents or guardians were not permitted to participate in the inquiry.
Inspection of documents was given.
Their answer sheets and marks secured were perused by the students and were asked to testify whether the answer books belongs to him or her and to identify the marks awarded by the examiner to each answer to the question and the total marks awarded.
It was also asked to verify and state whether the moderator 's mark sheets were tampered in the concerned subject or subjects as the case may be.
The student could easily identify and in fact identified his or her answer books and verified the marks awarded and answered positively that the marks were fabricated in the moderators ' mark sheets.
The questionnaire was also given to indicate their educational background in the previous school years and also the marks they expected at the final examinations.
The need of the assistance of the parents/guardians was thus absolutely nil.
Further question in the proforma was to ascertain from the students, due to tampering, whether or not the marks were increased to his or her advantage.
It could be answered by a mere look at the marks.
No outside assistance is needed.
All the students have admitted that the answer books belong to them.
They also admitted the marks initially awarded by the examiner or added or subtracted, if any, by the moderators.
They also admitted that the fabrication in the moderators ' mark sheets in the subject or subjects and the marks were increased to their advantage.
They also denied the complicity of him or her or of parents or guardians.
It is not the case of the respondents that they were coerced to answer the questions in a particular manner.
It is obvious from the record that they had prior consultations with the counsel.
Thus it could be seen that the procedure adopted at the inquiry is fair and just and it is not vitiated by any procedural irregularity nor is violative of the principles of natural justice.
The absence of opportunity to the parents or guardians, in this background does not vitiate the legality or validity of the inquiry conducted or decision of the Committee.
794 It is true, as contended by Sri Chidambaram and reiterated by other counsel, that the Inquiry Report does contain only conclusions bereft of the statement of facts and reasons in support thereof.
As pointed out by Sri Cama that in some of the reports, the body was written in the hand writing of one or other person and it was signed by the Inquiry Officer concerned.
But when an inquiry against 283 students was conducted, it is not expected that each Inquiry Officer alone should write the report under his/her hand.
In the circumstances the Inquiry Officer obviously had the assistance of the staff in the office to write the body or the conclusions to his/her dictation and he/she signed the report.
The reports cannot be jettisoned on the ground that the Inquiry Officer mechanically drew the conclusions in the reports without applying his/her mind to the facts.
The Enquiry Reports are not, therefore, bad in law.
In (Union of India) vs (Mohan Lal Capoor & Ors.,) this court speaking through M.M. Beg, J., for a Bench of two Judges held in paragraph 28 at page 854 that the reasons are the links between the materials on which certain conclusions are based to the actual conclusions.
They disclose how mind is applied to the subject matter for a decision, whether it is purely administrative or quasi judicial.
They would reveal nexus between the facts considered and the conclusions reached.
This view was reiterated in (Gurdial Singh Fijji) vs (State of Punjab & Ors.,) ; Those two cases relied on by Sri Chidambaram, the rules/regulations required recording of reasons in support of the conclusion as mandatory.
Unless the rule expressly or by necessary implications, excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure.
In an administrative decision, its order/decision itself may not contain reasons.
It may not be the requirement of the rules, but at the least, the record should disclose reasons.
It may not be like a judgement.
But the reasons may be precise.
In S.N. Mukherjee vs Union of India, J.T. the Constitution Bench of this Court surveyed the entire case law in this regard, and we need not burden the Judgement to reiterate them once over and at page 643 in paragraph 40 it held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi judicial functions is required to record the reasons for its decision.
In para 36 it was further held that recording of reasons excludes changes of arbitrariness and ensure a degree of fairness in the process of decision making.
The said principle would apply 795 equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review.
"It is not required that the reasons should be as elaborate as in the decision of a Court of law.
" The extent and nature of the reasons would depend on particular facts and circumstances.
What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given the consideration to the points in controversy.
The need for recording reasons is greater in a case where the order is passed at the original stage.
The appellate or revisional authority, if it affirms such an order, need not give separate reasons.
If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge.
Thus it is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at.
It also exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion.
The reasons assure an inbuilt support to the conclusion/decision reached.
The order when it effects the right of a citizen or a person, irrespective of the fact, whether it is quasi judicial or administrative fair play requires recording of germane and relevant precise reasons.
The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record.
It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under article 226 or the Appellate jurisdiction of this Court under article 136 to see whether the authority concerned acted fairly and justly to meet out justice to the aggrieved person.
From this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice.
The omnipresence and omniscience of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play.
But the applicability of the principles of natural justice is not a rule of thumb or a straight jacket formula as an abstract proposition of law.
It depends on the facts of the case nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances.
It is seen from the record and is not disputed, that all the students admitted, the factum of fabrication and it was to his or her advantage and that the subject/subjects in which fabrication was committed belong to him or her.
In view of these admissions the Inquiry Officer, obviously did not find it expedient to reterate all the admissions made.
If the facts are disputed, necessarily the authority or the Inquiry Officer, on consideration of the material on record, should record reasons in support of the conclusion reached.
Since the facts are admitted, the need to their 796 reiteration was obviated and so only conclusions have been stated in the reports.
The omission to record reasons in the present case is neither illegal, nor is violative of the principles of natural justice.
Whether the conclusions are proved or not is yet another question and would need detailed consideration.
In Khardah Co. Ltd. vs Their Workmen, ; at p. 514 the ratio that the Enquiry Report must contain reasons in support of the findings drawn neatly and briefly is of no assistance for the aforestated facts of this case.
The ratio in A.K. Roy, etc.
vs Union of India & Ors.
, ; that the aid of friend could be taken to assist the detenu and in Pett vs Grehound Racing Association Ltd., [1968] 2 All Eng.
Reports 545 the right to appoint an Agent to represent the case of the petitioner are also of no assistance since the rule expressly excluded such a representation.
The ratio in Union of India vs H.C. Goel, ; also does not help the respondents for the reason that it is not a case of no evidence and the conclusions were reached on the basis of the admission made by the respondents.
The ration in M/s. Bareilly Electricity Supply Co. Ltd. vs The Workmen & Ors., ; also does not apply to the facts of this case for the reasons that the need to examine the witnesses on behalf of the Board was obviated by the admissions made by the examinees.
The ratio in Shanti Prasad Jain vs The Director of Enforcement, is equally of no assistance to the respondents since the contention that the circumstances under which the fabrication of the moderators ' mark sheets came to be made is not a relevant fact.
Therefore, there is no need to examine the concerned officials in the State Board to explain as to how and who dealt with the papers from the time recounting was done in the office till the moderators ' mark sheets were sent to Pune to feed the computer.
The ratio in Merla Ramanne vs Nallaparaju & Ors, and Kashinath Dikshita vs Union of India & Ors., also do not assist the respondents for the reason that the answer books of the concerned students, the marks awarded by the examiners or addition or alteration, if any, made by the moderators and fabrication of the moderators ' mark sheets were admittedly given for personal inspection to the concerned students and given them an opportunity to inspect the record and thereafter they made admission.
The further contention of Sri Cama that the Standing Committee did not deal individually the answers given by each student and the decision was not based on evidence is without force as the conclusions are based on the admissions.
Equally the need to consider each case on merits is obviated by the admission made by every student.
The ratio in (Government medi 797 cal Store Depot, Karnal) vs (State of Haryana & Anr.,) ; at p. 454 that the charges are vague is also of no assistance to the facts of this case.
The ratio in (M/s. Kesoram Cotton Mills Ltd.,) vs (Gangadhar & Ors.,) ; at p. 825 that the documents must be supplied at least 48 hours in advance is also of no help to the respondents in view of the admissions made by the respondents.
The ratio in Tej pal Singh 's case (supra) that mere inspection of the documents will not cure the defect of procedure or violation of principles of natural justice also does not apply to the facts of his case.
The ratio in (State of Punjab) vs (Bhagat Ram) ; that the supply of synopsis of the material is not sufficient compliance with the principle of natural justice, also does not render any assistance to the respondents.
The ratio in (Gujarat Steel Tubes Ltd.,) vs (Gujarat steel Tubes Mazdoor Sabha,) ; at p. 202 that the conclusion and the findings are in different hand writings, which would show the non application of the mind to the facts and it violates the principle of natural justice also does not apply to the facts of this case.
The ratio in (Union of India & Ors.) vs (Mohd. Ramzan Khan,) JT also does not apply to the facts in this case as the report is solely based on the admission made by the examinees and no new material has been relied upon by the Enquiry Officers.
Undoubtedly, it is settled law that the right to life includes right to reputation and livelihood and that the individual as an entity is entitled to the protection of article 21, but in view of the facts of this case the ratio in (Vishwa Nath) vs (State of Jammu & Kashmir,) and (Ogla tellis & Ors.,) etc.
vs (Bombay Municipal Corporation & Ors., etc.,) ; also do not help the respondents.
The further contention of Sri Salve that the order must be a speaking order preceded by a fair enquiry and the report must be based on cogent evidence, and in this case all the requirements are lacking is also an argument of despair.
Therefore, for the reasons given earlier, the argument stands rejected.
The next contention that the notification is vitiated for the reasons that the Standing Committee itself did not record any reason in support of its conclusion that the examinees or the parents or the guardians are parties to the fabrication cannot be sustained for the reason that the regulation itself postulates that if the Committee disagrees with the Inquiry Officer then only it is obligatory to record reasons.
Since the Committee agreed with the report, there is no need, on their part, to record the reasons.
The impugned notification, therefore, is not vitiated by violation of rules of natural justice.
The crucial question, therefore, is whether the conclusions 798 reached by the authorities that the examinees, their parents or guardians were parties to the fabrication and whether their complicity was established from record and whether the evidence was sufficient to support such conclusion reached by the Standing Committee or the Enquiry Officer.
Counsel on either side generated considerable debate on "the standard of proof" in a domestic enquiry.
Mr. Jaitely placed reliance on paragraph 18 of Vol.
17 of Halsbury 's Law of England, Fourth Edition, at page 16, which reads thus "To succeed on any issue the party bearing the legal burden of proof must (1) satisfy a judge or jury of the likelihood of the truth of his case by adducing a greater weight of evidence than his opponent, and (2) adduce evidence sufficient to satisfy them to the required standard or degree of proof.
The standard differs in criminal and civil cases.
In civil cases the standard of proof is satisfied on a balance of probabilities.
However, even within this formula variations in subject matter or in allegations will affect the standard required; the more serious the allegation, for example fraud, crime or professional misconduct, the higher will be the required degree of proof, although it will not reach the criminal standard.
In criminal cases, the standard required of the prosecution is proof beyond reasonable doubt.
This standard is also requisite in case of committal for contempt, and in pension claims cases.
In matrimonial cases it seems that proof on balance of probabilities is sufficient.
Once a matter is established beyond reasonable doubt it must be taken for all purposes of law to be a fact, as there is no room for a distinction between what is found by inference from the evidence and what is found as a positive face." and contended that the standard of proof of fabrication of record in a domestic inquiry does not differ from criminal charge and it must be of a higher degree.
In the Board of High School and Intermediate Education U.P. vs Bagleshar Persad & Ors., relied on by Sri Andhyarjuna the facts were that the appellant Board accepting the findings of the committee that the respondents used unfair means in answering the subjects, cancelled the declaration of the results of the respondent in the High School Certificate Examination held in 1960.
The charges were based on the facts that in the Hindi paper the 799 respondent gave wrong answers to a particular question in the same way in which the answers have been given by another candidate who was having consecutive number.
The High Court held that the findings of the Committee were based on no evidence and quashed the cancellation of the results.
On appeal, this Court held that the respondent admitted that the mistakes in answers in the two papers were identical and he pleaded that he could not say anything as to why this happened.
The proof of charges was inferred that as either the respondent copied from the answer book of the candidate or that both of them had copied from any other source.
It was accordingly held that is would amount to the adoption of unfair means.
The High Court, therefore, committed error in assuming that there is no evidence in proof of it.
At page 774 this Court further held that in dealing with question as to whether the Committee was justified in arriving at its conclusion against the respondent it would not be reasonable to exclude from the consideration of the circumstances on which the whole enquiry came to be held and the general background of the atmosphere in the examination hall.
It was also further held at page 775 that educational institutions like the universities set up enquiry committees to deal with the problem of adoption of unfair means by candidate and normally it is within the jurisdiction of such domestic tribunals to decide all relevant questions in the light of the evidence adduced before them.
In the matter of the adoption of unfair means direct evidence may sometime be available but cases may arise where direct evidence is not available and the question will have to be considered in the light of the probabilities and circumstantial evidence.
This is the problem with the educational institution.
How to face it, is a serious problem and unless there is justification to do so, court should be slow to interfere with the decisions of domestic tribunal appointed by the education body like universities.
In dealing with the validity of the impugned order passed by the universities under article 226 the High Court is not sitting in an appeal over the decision on this question.
Its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence, the High Court may be justified to quash the order.
But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether the probabilities and circumstantial evidence do not justify the said conclusion.
The enquiry held by domestic tribunals in such cases must, no doubt be fair and the students must be given adequate opportunity to defend themselves and holding such enquiries, the tribunal must follow the rules of natural justice.
Accordingly, it was held that the appeal was allowed and the order of the High Court was set aside and 800 that of the domestic tribunal was confirmed.
In (Bihar School Examination Board) vs (Subhash Chandra Sinha & Ors.,) ; this Court emphasised that the essence of an examination is that the worth of every person is appraised without any assistance from an outside source.
The academic standards require that the authority 's appreciation of the problem must be respected.
A full fledged judicial inquiry was not required.
It is not necessary to conduct an inquiry in each individual case to satisfy itself who are the candidates that have adopted unfair means when the examination as whole had to go.
It was further held at p. 968 E to H that "while we do not wish to whittle down the requirement of natural justice and fair play in case where such requirement may be said to arise, we do not want that this court should be understood as having stated that an enquiry with a right to representation must always precede in every case, however, different.
The universities are responsible for their standard and conduct of the examination.
The universities are responsible for their standard and conduct of the examination.
The essence of the examination is that the worth of every person is appraised without any assistance from an outside source.
It cannot be held that a detailed quasi judicial enquiry with right to its alumini to plead and lead evidence, etc. is preceded before the result are withheld or examinations cancelled.
If there is sufficient material on which it could be demonstrated that the Authority was right in its conclusion that the examination ought to be cancelled then academic standards require that the Authority 's appreciation of the problem must be respected.
It would not be for the courts to say that we should have examined all the candidates or even their representatives with a view to ascertaining whether they had received assistance or not.
To do this, would encourage indiscipline, if not also prejury.
It is true as stated by Sri Chidambaram that the above ratio was laid in the context of the cancellation of examination of the entire centre.
But the general principles must be kept in view while dealing with the problem faced by the academic institutions.
In (Seth Gulabchand) vs (Seth Kudilal and Ors.,) ; this Court held that there is no difference between cases in which charges of a fraudulent or criminal character are made and cases in which such charges are not made.
While striking the balance of probability, the court would keep in mind the presumption of honesty and innocence or the nature of the crime or fraud charged.
The rules applicable to circumstantial evidence in criminal cases would not apply to civil cases.
The ordinary rules governing civil cases of balance of probabilities will continue to apply.
801 In (Ghazanfar Rashid) vs (Board, H.S. & I. Edn. U.P. & Ors.,) AIR 1970 Allahabad 209 a full Bench, speaking through ours learned brother K.N. Singh, J. (as he then was) dealing with the standard or proof of the charge of use of unfair means at the examination, it was held that it was the duty of the Examination Committee, etc., to maintain purity of examination and if examinee is found to have used unfair means at the examination, it is the duty of the Examination Committee to take action against the erring examinees to maintain the educational standard.
Direct evidence is available in some cases but in a large number of cases, direct evidence is not available.
In that situation the Examination Committee as of necessity to rely on circumstantial evidence which may include the answer given by the examinee, the report of the Superintendent of the centre, the invigilator and the report of the experts and other attending circumstances.
The Examination Committee, if relies upon such evidence to come to the conclusion that the examinee has used unfair means in answering questions then it is not open to the High Court to interfere with that decision, merely because the High Court may take a different view on re assessment of those circumstances.
While it is open to the High Court to interfere with the order of the quasi judicial authority, if it is not supported by any evidence or if the order as passed in contravention of the statutory provisions of the law or in violation of the principles of natural justice, the court has no jurisdiction to quash the order merely on the ground that different view could possibly be taken on the evidence available on the record.
The Examination Committee has jurisdiction to take decision in the matter of use of unfair means not only on direct evidence but also on probabilities and circumstantial evidence.
There is no scope for importing the principles of criminal trial while considering the probative value of probabilities and circumstantial evidence.
the Examination Committee is not bound by technical rules of evidence and procedure as are applicable to Courts.
We respectfully agree with the ratio.
In Miller vs Minister of Pensions, [1947] All Eng.
Law Reports 372 at p. 374 Denning J., as he then was, reiterated that the evidence against the petitioner must have the same degree of cogency as is required to discharge a burden in a civil case.
It must carry a reasonable degree of probability, but not so high as is required in a criminal case.
If the evidence is such that the tribunal can say: "We think it more probable than not the burden is discharge but, if the probabilities are equal, it is not discharged." 802 In State of Uttar Pradesh vs Chet Ram & Ors., relied on by Sri Chidambaram, this Court dealt with the proof of guilt of the accused at a criminal trial.
This Court held that when two views are plausible, the view being taken must have some content of plausibility in it and without the same, the other view cannot be countenance in law as a plausible alternative.
It must be remembered that at a criminal trial the burden of proof is always on the prosecution.
It must establish the guilt of the accused beyond all reasonable doubts.
If there exist a plausible alternative view, its benefit must be extended only to the accused and not to the prosecution.
Therefore, the ratio therein is inapplicable to a proceeding either in the civil case or in an enquiry before a domestic tribunal.
State of U.P. vs Krishna Gopal & Anr., ; at p. 314 also relates to criminal trial.
In paragraph 26 in assessing the evidence adduced by the prosecution, this Court laid that the concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt.
There is an unmistakable subjective element in the evaluation of the degree of probability and the quantum of proof.
Forensic probability must, in the last analysis, rest on the robust common sense and, ultimately, on the trained institutions of the Judge.
In evaluating the circumstantial evidence in Hanumant vs The State of Madhya Pradesh, [1952] SCR 1091 at p. 1097 the Court approved the statement of Baron Alderman in Reg vs Hodge, that: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts, of one connected whole; and the more ingenious the mind of the individual the more likely was it, considering such matters, to over reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
" It was held that in evaluating the evidence of circumstantial nature it is the duty of the prosecution that all the circumstances must be fully established circumstances should be consistent only with the hypothesis of the guilt of the accused.
This standards of proof also is not relevant not to be extended to consider the evidence in an inquiry by the domestic tribunal.
The ratio in (Bank of India vs J.A.H. Chinoy,) AIR 1950 PC 90 that the appellate court would be reluctant to differ from conclusion of the trial Judge if his conclusion is based on 803 the impression made by a person in the witness box is also not germane for the purpose of this case.
It was laid therein that inferences and assumptions founded on a variety of facts and circumstances which, in themselves, offer no direct or positive support for the conclusion reached, the right of the appellate court to review this inferential process cannot be denied.
While dealing with proof of fraud it was held that speculation is not enough to bring home a charge of fraudulent conspiracy.
In Khwaja vs Secretary of State, [1983] 1 All Eng.
Law Reports 785 (H.L.) dealing with the functions of the Immigration Authorities and of the Courts, Lord Wilberforce at p. 7877, laid the law that the allegation that permission to enter into the country by an immigrant was obtained by fraud or deceit being of a serious character and involving issues of personal liberty requires a corresponding degree of satisfactory evidence.
If the Court is not satisfied with any part of the evidence, it may remit the matter for reconsideration or itself receive further evidence.
It should quash the detention order where the evidence was not such as the authority should have relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularity.
At p.784 Lord Scarman held that it is not necessary to import in the civil proceedings of judicial review the formula devised by Judges for the guidance of juries in criminal cases.
The reviewing court will, therefore, require to be satisfied that the facts which are required for the justification of the restraint put on liberty do exist.
The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake.
The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue.
Therefore, the civil standard of flexibility be applied to deal with immigration cases.
In Sodhi Transport Co. & Anr., etc.
vs State of U.P. & Anr., etc.
, [1986] 1 SCR 939 at p. 954 this Court dealing with rebutable presumption held that: "A presumption is not in itself evidence but only makes a prima facies case for party in whose favour it exists.
It is a rule concerning evidence.
It indicates the person on whom the burden of proof lies.
When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts.
But when it is rebuttable it only points out the party on whom 804 lies the duty of going forward with evidence on the facts presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of presumption is over.
Then the evidence will determine the true nature of the fact to be established, the rules of presumption are reduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances.
" Bhandari vs Advocates Committee, [1956] All Eng.
Law Reports 742 (PC) is also a case concerning the professional misconduct.
In proof of the charge it was held that it is the duty of the professional domestic tribunal investigating the allegation to apply a high standard of proof and not to condemn on a mere balance of probabilities.
In Glynn) vs (Keele University & Anr., [1971] 2 All Eng.
Law Reports, 89 (Chancery Division) relied on by Sri Salve, the question arose whether failure to give an opportunity to the students before the suspension is violative of the principles of natural justice.
It was held that the student did not deny commission of the offence, therefore, it was held that the student suffered no injustice by reason of the breach of the rules.
Further while dealing with the scope of the inquiry by the domestic tribunal, it was held that the society is charged with the supervision and upbringing of the pupil under tution, be the society, a university or college or a school.
Where this relationship exists it is quite plain that on the one hand in certain circumstances the body or individual acting on behalf of the society must be regarded as acting in a quasi judicial capacity expulsion from the society is the obvious example.
On the other hand, there exists a wide range of circumstances in which the body or individual is concerned to impose penalties by a way of domestic discipline.
In those circumstances the body or individual is not acting in a quasi judicial capacity at all but in a ministerial capacity, i.e. in the performance of the rights and duties vested in the society as to the upbringing and supervision of the members of the society.
No doubt there is a moral obligation to act fairly, but this moral obligation does not, lie within the purview of the court in its control over quasi judicial acts.
The ratio relied on by Shri Salve, far from helping the respondents, is consistent withour view.
The ration in In Re: An Advocate ; also concerned with professional misconduct of an Advocate and higher standard of proof of the charge of misconduct was insisted upon.
Equally so in Shri Krishan vs The Kurukshetra University, Kurukshetra.
; , These decisions relied on by Sri Jaitley also do not assist us.
805 The contention of Sri Cama placing any reliance on Shivajirao Nilangekar Patil vs Dr. Mahesh Madhav Gosavi & Ors. and vice versa, that the Vice chancellor would not have done what he did except with the instructions of the Chief Minister who was to be benefitted by getting his daughter passed in M.D. was not accepted by this Court and that it was further contended that the benefit test is preposterous one and the preponderence of probabilities is not possible to be deduced from the test, does not appear to be sound.
This Court noted that the Chief Minister was not prepared, as suggested by the Division Bench, to face an inquiry and that, therefore, substituted to the findings of the Division Bench, in the penultimate paragraph of the judgment that the court would be cognizant of the steep decline of public standards, public moral and public morale which have been contaminating the social environment and emphasised that "where such situation cry out the Court should not and cannot remain mute and dumb" and it is necessary to cleanse public life.
It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal.
It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act.
The material must be germane and relevant to the facts in issue.
In grave cases like forgery, fraud, conspiracy, misappropriation, etc.
seldom direct evidence would be available.
Only the circumstantial evidence would furnish the proof.
In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation.
The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole.
There must be evidence direct or circumstances to deduce necessary inference in proof of the facts in issue.
There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish.
In some cases the other facts can be inferred with as much practical as if they had been actually observed.
In other cases the inferences do not go beyond reasonable probability.
If thee are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation on conjecture.
Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn.
The standard of proof is not proof beyond reasonable doubt 806 "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable.
Standard of proof cannot be put in a straight Jacket formula.
No mathematical formula could be laid on degree of proof.
The probative value could be gauged from facts and circumstances in a given case.
The standard of proof is the same both in civil cases and domestic enquiries.
From this legal setting we have to consider whether the inference deduced by the Education Standing Committee that the fabrication of moderators ' mark sheets was done at the behest of either the examinee or the parent or guardian is based on the evidence on record.
It is already found that the examinees admitted the forgery of their concerned moderators ' mark sheets resulting the increase of marks to their advantage.
The fabrication of the moderators 'mark sheets was done after the scrutiny by the concerned officials in the office of the State Board at Bombay and before the moderators ' mark sheets were taken out to Pune to feed the computer.
Why one is expected or interested to wade through eighty thousand moderators ' marks sheets to locate only the 283 examinees mark sheets and add marks by fabrication? Unless either the examinee or parent or guardian approached the fabricator; given the number and instructed him/them to fabricate the marks, it would not be possible to know their number to fabricate.
The act of fabrication is an offence.
Merely it was done in one subject or more than one makes little difference.
Its gravity is not mitigated if it is committed in one subject alone.
This is not an innocent act or a casual mistake during the course of performance of the official duty as is sought to be made out.
It was obviously done as a concerted action.
In view of the admitted facts and above circumstances the necessary conclusion that could unerringly be drawn would be that either the examinee o r the parent or guardian obviously was a privy to the fabrication and that the forgery was committed at his or her or parent 's or guardian 's behest.
It is, therefore clear that the conclusion reached by the Education Standing Committee that the fabrication was done at the instance of either the examinees or their parents or guardians is amply borne out from the record.
The High Court in our view over stepped is supervisory jurisdiction and trenched into the arena of appreciation of evidence to arrive its own conclusions on the specious plea of satisfying 'conscience of the court '.
The question then is whether the rules relating to mode of punishment indicated inthe Appendix 'A ' to the resolution are invalid.
We have given our anxious thought to the contention and to the view of the High Court.
In our view the punishments indicated in 807 the last column is only the maximum from which it cannot be inferred that it left no discretion to the disciplinary authority.
No axiomatic rule can be laid that the rule making authority intended that under no circumtances, the examination Committee could award lesser penalty.
It depends on the nature and gravity of the misconduct to be dealt with by the disciplinary authority.
In a given case, depending on the nature and gravity of the misconduct lesser punishment may be meted out.
So by mere prescription of maximum penalty rules do not become invalid.
We have no hesitation to conclude that when the evidence justified the examination Standing Committee to record the finding that the examinees, parents or guardians are parties to the fabrication, it is not open to the High Court under article 225 to itself evaluate the evidence and to interfere with the finding and to quash the impugned notification.
This Court under article 136 has to correct the illegalities committed by the High Court when it exceeded its supervisory jurisdiction under article 226.
In view of the fair attitude adopted by the counsel for the Board, it is not necessary to go into the question of quantum of punishment.
In the light of the above finding, normally the appeals are to be allowed, the judgement of the High Court is set aside and the impugned notification dated August 31, 1990 upheld in toto.
But we modify the High Court 's order as per the directions given in our order dated January 30, 1991, wherein we accepted the signed statement by the counsel for the Board without prejudice to their contention and directed the Board (a) to allow all the candidates referred to in the Notification of August 31, 1990 to appear at the S.S.C. examination to be conducted in March, 1991 by the Board; and (b) to declare the untampered results of nine named candidates therein.
The failed candidates covered by the notification and willing to appear in ensuing examination of March 1991, there applications will be accepted if the same are submitted on or before 13th February, 1991 through Heads of their respective schools.
So far as the other candidates are concerned, their results shall not be declared, but they will be permitted to appear in the ensuing examination of the Board to be held in March, 1991 in case their applications are received before 13th February, 1991, through Heads of their respective schools.
In this regard the Board shall inform all the concerned schools and will also give due publicity in the two local newspapers within 3 days.
The Board was further directed to consider the cases of such candidates out of 283 who are similar to the nine named candidates other than respondent 808 No. 17, Deepa V. Agarwal and in their cases also the untampered result shall be declared on or before 6th February, 1991 and we are informed that results of 18 more candidates were declared.
The notification dated August 31, 1990 is upheld subject to above modification and shall be operative between the parties.
Before parting with the case we impress upon the appellant to have indepth investigation made expeditiously, if need be, with the assistance of C.B.C.I.D., of the racket of fabrication and bring the culprit to justice.
The appeals are allowed accordingly, but in the circumstances parties are directed to bear their own costs.
R.S.S. Appeals allowed.
|
The appellant Board conducted secondary examinations in the month of March 1990.
During recounting of the marks obtained by the candidates it was found that moderators mark sheets relating to 283 examinees, which included the 53 respondents, had been tampered with.
The declaration of their results was withheld pending enquiry.
Several writ petitions were filed against non declaration of the results and the High Court directed the appellant to the expeditious action to declare the results.
The Board appointed seven enquiry officers to conduct the enquiry.
Show cause notices were issued to the students informing them of the nature of tampering, the subjects in which the marks were found tampered with, the marks initially obtained and the marks increased due to tampering, and also indicated the proposed punishment, if in the enquiry it would be found that marks were tampered with the knowledge or connivance or at the instance of the candidates or parents or guardians.
They were also informed that they would be at liberty to inspect the documents at the Divisional Board at Bombay; they were entitled to adduce documentary and oral evidence at the hearing; they would also be permitted to cross examine the witnesses of the Board, if any; they would not be entitled to appear through an advocate, and the parents or guardians would be permitted to accompany the students at the time of enquiry, but they would not be entitled to take part in the enquiry.
All the candidates admitted that the marks initially awarded by 773 the examiners had been tampered with in the moderators mark sheets; and due to tampering the marks were increased and the increase was to their advantage.
However, they denied that either they or their parents or guardians were privy to the tampering.
The Enquiry Officers submitted their reports holding that the moderators mark sheets had been fabricated and submitted the reports to the Board.
The Standing Committee constituted in this regard considered the records and the reports and resolved to withhold, as a measure of punishment, the declaration of the results of their examinations and to debar the students to appear in the supplementary examination.
The notification to that effect was published on 31.8.1990 and the report submitted to the High Court.
The High Court allowed the writ petitions.
One Hon 'ble Judge held that the Standing Committee was devoid of power, and because it did not obtain the approval of the Divisional Board, the impugned notification was without authority of law.
On merits, the learned Judge held that the Standing Committee did not apply its mind in the proper perspective to the material facts, and therefore, the finding that tampering was done at the instance of the examinees/parents/guardians was perverse.
The other Hon 'ble Judge held that the examinees were not guilty of the mal practices and their guilt had not been established.
Before this Court, it was contended on behalf of the respondents that the Act empowered that Divisional Board to deal with the use of unfair means at the final examination, and the Standing Committee was an alien body to the divisional Board; the students were minors and neither the parents nor anybody like an advocate was permitted to assist the students; answers to the questionnaire were extracted from the students to confess their guilt: no adequate opportunity was given to the students at the enquiry; the evidence without subjecting it to cross examination was of no value; the Standing Committee did not apply its mind to the facts, nor recorded reasons in support of its conclusion that the examinee/parents/guardians were parties to the fabrication; the Board should establish the guilt of the examinees beyond all reasonable doubts; the standard of proof ought to be of a high degree akin to trial in a criminal case; the test of benefit to an examinee was preposterous; no evidence was placed on record, nor was it proved and hence the findings of the Standing Committee were clearly based on no evidence; the Enquiry Report contained only conclusions bereft of the statement of facts and reasons in support thereof; and the order ought to have been a speaking order preceded by a fair enquiry and the report must 774 be based on cogent evidence.
On behalf of the Board, it was inter alia contended that all the examinees admitted in answers to the questionnaire that tampering was done and it was to their advantage, and that in view of the admission, the need to examine any person from the concerned section was obviated.
Allowing the appeals, upholding the notification subject to modifications, this Court, HELD: (1) there is no manner of doubt that unfair means were used at the final Secondary Examination by fabricating the Moderators ' mark sheet of the examinees, in concerted manner, admittedly to benefit the students.
[782C] (2) The State Board is empowered to constitute the Divisional Boards and the Standing Committees.
The State Board is also empowered to make regulations to conduct examinations and also to deal with the use of unfair means at the final examination conducted by the Board.
The Divisional Board is empowered to conduct within its area the final examination on behalf of the State Board.
The Divisional Board is also empowered to deal with the cases of unfair means according to the procedure laid down by the State Board.
[783F G] (3) The Standing Committee is an executive arm of the Divisional Board for the efficient and expeditious functioning of the Board as adumberated under the Act itself.
It is not a foreign body.
When the Standing Education Committee takes the decision its decision is on behalf of the Divisional Board, and the decision of the Divisional Board in turn is on behalf of the State Board.
[786E F] (4) On a fair and harmonious reading of the relevant provisions of the Act and the Maharashtra Secondary and Higher Secondary Education Board, Regulation, 1977 the Examination Committee of the Divisional Board is itself a statutory body which acted on behalf of the Divisional Board and is not a delegate of the Divisional Board.
[786H] State of U.P. vs Batuk Deo Pati Tripathi & Anr., ; Kargram Panchayat Samiti & Anr.
vs State of West Bengal & Ors., [1987] 3 S.C.C. 82; Baradakanta Misra vs High Court of Orissa & Anr., and Tej Pal Singh (dead) through L.rs.
vs State of U.P. & Anr., , referred to.
775 (5) The Standing Committee is an integral part of the Divisional Board and its acts are for and no behalf of the Divisional Board.
Accordingly, the Board must be deemed to have passed the impugned notification as per the scheme of the provisions of the Act and the Regulations.
Therefore, the finding of the learned Judge that the Standing Committee had no power to take the impugned decision, etc.
without approval of the Divisional Board is clearly illegal and cannot be sustained.
[789B C,F] (6) While exercising the powers under Article 226 or Article 136 of the Constitution, the High Court or this Court, is not sitting as a Court of Appeal on the findings of facts recorded by the Standing Committee (Domestic Enquiry Board) nor have power to evaluate the evidence as an appellate Court and to come to its own conclusions.
If the conclusions reached by the Board can be fairly supported by the evidence on record then the High Court or this Court has to uphold the decision, though as appellate Court of facts, it may be inclined to take a different view.
[789C] (7) Fabrication cannot be done except to benefit the examinees.
The fabricator had done it for reward in concert with outside agencies.
Therefore, the inference from these facts drawn by the Standing Committee that the examinees/parents/guardians were responsible to fabricate the moderators ' mark sheets is based on evidence.
[790G] (8) It is not open to the High Court to evaluate the evidence to come to its own conclusions.
Thereby the High Court has committed manifest error of law warranting interference by this Court.
[791A] (9) The Writ Court would not interfere with an order of educational institution.
Therefore, what the writ Court needs to do is to find whether fair and reasonable opportunity has been given to the students in the given facts.
[792F] D.M.K. Public School vs Regional Joint Director of Hyderabad, A.I.R. 1986 A.P. 204; G.B.S. Omkar vs Shri Venkateswara University, A.I.R. 1981 A.P. 163.
(10) Assistance of an Advocate to the delinquent at a domestic enquiry is not a part of the principles of natural justice.
It depends on the nature of the inquiry and the peculiar circumstances and facts of a particular case.[792H] 776 (11) The regulations and the rules of enquiry specifically excluded the assistance of an advocate at the inquiry.
Therefore, the omission to provide the assistance of a counsel at the inquiry is not violative of the principles of natural justice.
[793A] (12) The procedure adopted at the inquiry was fair and just and it was not vitiated by any procedural irregularity nor was violative of the principles of natural justice.
The absence of opportunity to the parents or guardians, in this background, did not vitiate the legality or validity of the inquiry conducted or decision of the Committee.
[793G H] (13) Unless the rule expressly or by necessary implications, excluded recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure.
In an administrative decision, its order/decision itself may not contain reasons.
It may not be the requirement of the rules, but at the least, the record should disclose reasons.
It may not be like a judgement.
But the reasons may be precise.
[794F] Union of India vs Mohan Lal Capoor & Ors. ; Gurdial Singh Fiji vs State of Punjab & Ors. ; and S.N. Mukherjee vs Union of India, J.T. , referred to.
(14) The omnipresence and omniscience of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play.
But the applicability of the principles of natural justice is not a rule of thumb or a straight jacket formula as an abstract proposition of law.
It depends on the facts of the case, nature of the inquiry and the effect of the order decision on the rights of the person and attendant circumstances.
[795F] (15) In the instant case, since the facts are admitted, the need to their reiteration was obviated and so only conclusions have been stated in the reports.
The omission to record reasons is neither illegal, nor is violative of the principles of natural justice.
[795H 796A] Khardah Co. Ltd. vs Their Workmen, ; ; A.K. Roy etc.
vs Union of India & Ors.
[1982] 1 S.C.C. 271; Pett vs Grehound Racing Association Ltd., [1968] 2 ALL Eng.
Reports 545; Union of India vs H.C. Goel, ; ; M/s. Bareilly Electricity Supply Co. Ltd. vs The Workmen & Ors. ; ; Shanti Prasad Jain vs The Director of Enforcement, ; Merla Ramanna vs Nallaparaju & Ors., ; 777 Kashinath Dikshita vs Union of India & Ors., [1986] 3 S.C.C. 229; Government Medical Store Depot, Karnal vs State of Haryana & Anr.
, ; ; M/s. Kesoram Cotton Mills Ltd. vs Gangadhar & Ors., ; ; State of Punjab vs Bhagat Ram, ; Gujarat Steel Tubesl Ltd. vs Gujarat Steel Tubes Mazdoor Sabha,, ; ; Union of India & Ors.
vs Mohd. Ramzan Khan, J.T. ; Vishwa Nath vs State of Jammu & Kashmir, ; Olga Tellis & Ors.
vs Bombay Municipal Corporation, etc.; , , referred to.
(16) Court should be slow to interfere with the decisions of domestic tribunals appointed by the education bodies like universities.
[799F] (17) In dealing with the validity of the impugned order passed by a University under Article 226 the High Court is not sitting in an appeal over the decision on this question.
Its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence the High Court may be justified to quash the order but the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether the probabilities and circumstantial evidence do not justify the said conclusion.
The enquiry held by domestic tribunals in such cases must no doubt be fair and the students must be given adequate opportunity to defend themselves and holding such enquiries, the tribunal must follow the rules of natural justice.
[799F G] Board of High School and Intermediate Education U.P. vs Sagleshar Persad & Ors., and Bihar School Examination Board vs Subhas Chandra Sinha & Ors. ; referred to.
(18) The examination committee has jurisdiction to take decision in the matter of use of unfair means not only on direct evidence but also on probabilities and circumstantial evidence.
There is no scope for importing the principles of criminal trial while considering the probative value of probabilities and circumstantial evidence.
The Examination committed is not bound by technical rules of evidence and procedure as are applicable to Courts.
[801E F] Seth Gulabchand vs Seth Kudilal & Ors., [1966] 3 S.C.R. 623; Ghazanfer Rashid vs Board H.S. & I. Edn.
U.P., A.I.R. 1970 Allahabad 209; Miller vs Minister of Pensions, [1947] All.
E.L.R. 372; State of Uttar Pradesh vs Chet Ram & Ors., , referred to.
778 (19) There is an unmistakable subjective element in the evaluation of the degree of probability and the quantum of proof.
Forensic probability must, in the last analysis, rest on the robust common sense and, ultimately, on the trained institutions of the Judge.
[802D] (20) Strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings of domestic tribunals.
It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act, the material must be germane and relevant to the facts in issue.
In grave cases like forgery, fraud, conspiracy, misappropriation, etc.
seldom direct evidence would be available.
Only the circumstantial evidence would furnish the proof.
Inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation.
[805D E] State of U.P. vs Krishna Gopal & Anr.,, ; ; Hanumant vs The State of Madhya Pradesh, [1952] S.C.R. 1091; Reg.
vs Hodge, ; Bank of India vs J.A.H. Chinoy, A.I.R. 1950 P.C. 90; Khwaja vs Secretary of State, [1983] 1 All E.L.R. 765 (H.L.); Sodhi Transport Co. & Anr.
vs State of U.P. & Anr.
etc., [1986] 1 S.C.R. 939; Bhandari vs Advocates Committee, [1956] A.E.L.R. 742 (P.C.); Glynn vs Keale University & Anr.
; In Re: An Advocate; , ; Shri Krishan vs The Kurukshetra University, Kurukshetra, A.I.R. and Shivajirao Nilangekar Patil vs Dr. Mahesh Madhav Gosavi & Ors. & Vice Versa, ; , referred to.
(21) The standard of proof is not beyond reasonable doubt "but" the preponderance of probabilities tending to draw and inference that the fact must be more probably.
Standard of proof cannot be put in a straight jacket formula.
No mathematical formula could be laid on degree of proof.
The probative value could be gauged on facts and circumstances in a given case.
The Standard of proof is the same both in civil cases and domestic enquiries.
[805H 806B] (22) The conclusion reached by the Education Standing Committee that the fabrication was done at the instance of either the examinees or their parents or guardians is amply borne out from the record.
The High Court over stepped its supervisory jurisdiction and trenched into the arena of appreciation of evidence to arrive its own conclusion on the specious plea of satisfying 'conscience of the Court '.
[806G]
|
ivil Appeals Nos.
945 47 of 1991.
From the Judgment and Order dated 8.8.1990 of the Punjab & Haryana High Court in L.P.A. Nos.
266, 267 and 268 of 1986.
P.P. Rao, J. Lal, Ms. Yasmin Tarapore, S.K. Bagga and C.M. Nayar for the Appellants.
G.L. Singhi, J.K. Sibal and Ms. Kamini Jaiswal for the Respondents.
The Judgment of the Court was deliverd by FATHIMA BEEVI, J.
Special leave granted.
These Civil Appeals arise from the common judgment dated 8.8.1990 of the High Court of Punjab and Haryana dismissing Letters Patent Apeals against the judgment dated 12.2.1986 of the single Judge allowing writ petitions filed under Articles 226 and 227 of the Constitution of India.
Civil Appeals arising out of S.L.P. (C) Nos.
14471 73 of 1990 are filed by the State of Punjab and Civil Appeals arising out of S.L.P. (C) Nos.
14236 38 of 1990 are filed by Ram Saran and O.P. Singhla, the respondents in the writ petitions.
We shall hereinafter refer the contesting respondents Ram Saran and O.P. Singhla as 'the appellants ' and writ petitioners as 'the petitioners ' for the sake of convenience.
In the Punjab Excise & Taxation Department, there were two separate and distinct cadres known as Assistant Excise and Taxation 733 Officers governed under the Punjab Excise and Taxation Department (State Service Class III A) Rules, 1956 (hereinafter referred to as Class III/A Rules ') and the Excise and Taxation Officers governed by the Punjab Excise and Taxation Department (State Service Class II) Rules.
Under the Class II Rules, appointment to the cadre of Excise and Taxation Officers was made (a) by direct recruitment to the extent of 50% and (b) by promotion from amongst Assistant Excise and Taxation Officers to the extent of 50%.
Under Class III A Rules, subordinate staff was eligible for promotion to the extent of 50% of the vacancies of Assistant Excise and Taxation Officers and their shares were as under: (i) Taxation Inspector 25% (ii) Excise Inspector 12 1/2% (iii) Ministerial Staff Head Office 6 1/4% (iv) Ministerial Staff Sub Office 6 1/4% The appellants as well as the writ petitioners joined the ministerial cadre of the Excise and Taxation Department as Clerks and were confirmed as such.
The writ petitioners were promoted to the higher post and later appointed as Excise/Taxation Inspectors in 1971 72 by transfers under Rule 7(a)(ii) of the Punjab Excise Subordinate Service Rules, 1943.
On such transfer as Excise/Taxation Inspectors, the lien of the writ petitioners was suspended in accordance with the provisions of Rule 3.14(b) of the Punjab Civil Services Rules (Volume I Part I).
The appellants continued in the ministerial cadre, Ram Saran as Assistant and O.P. Singhla as Superintendent.
The Excise and Taxation Department was reorganised on 18th May, 1977.
The cadre of Assistant Excise and Taxation Officers was abolished on 18th May, 1977 and the Assistant Excise and Taxation Officers were redesignated as Excise and Taxation Officers.
Thereafter Class III A Rules became redundant and inoperative and under Class II Rules became redundant and inoperative and under Class II Rules, there was no provision for promotion from subordinate staff direct as Excise and Taxation Officers.
The Government in order to provide avenues of promotion to the subordinate staff decided to make suitable amendment to the Class II Rules on the following terms: "Rule 5.
The members of the service shall be recruited in 734 the following manner, namely: a. xxx xxx xxx b.
In the case of an Excise and Taxation Officer; (i) by promotion from amongst the Taxation Inspectors and Excise Inspectors who have an experience of working as such for a minimum period of five years; or (ii) by promotion from amongst the Superintendents, Assistant, Accountants and Senior Scale Stenographers working in the Excise and Taxation Commissioners Head Office and in the Divisional and District Offices of the Department of Excise and Taxation, Punjab," It was further provided that there will be certain quota for each of the above categories for promotion to the rank of Excise and Taxation Officers.
The State Government decided to adopt and apply the draft provision of Rule 5 in the matter of filling up of the vacancies in the carde of Excise/Taxation Officers before rules could be formally promulgated.
Thus on 22.8.1983, Ram Saran and O.P. Singhla were promoted as Excise/Taxation Officers.
The writ petitioners having been transferred to the other cadres of Excise/Taxation Inspectors have continued there for 14/15 years beyond and period of probation and also qualified the departmental test for Inspectors and they were not considered for the promotion as Excise and Taxtion Officers.
The writ petitions were, therefore, filed challenging the promotion of the appellant mainly on the ground that on the basis of their seniority and lien on the post in the ministerial cadre, the writ petitioners had a right to be considered for promotion to the post of Excise and Taxation Officers prior to the appellants.
The contention of the appellants as well as the State was that though the lien of the writ petitioners in the ministerial cadre was suspended in terms of Rule 3.14(b) of the Punjab Civil Service Rules, if the petitioners wanted that they should be considered for the post of Excise and Taxation Officers on the basis of their lien in the ministerial cadre, they may seek reversion and thereafter their case would be considered on merits and under rules.
It was clarified by the Financial Commissioner in the order dated 7.8.1985 that the case of the writ petitioners would be considered in the light of the eligibility under the 735 relevant rule, that is to say, the amended Rule 5.
The eligibility prescribed under the said rule for promotion from amongst Superintendents etc.
in the ministerial service includes experience of working as such for a period of five years.
The writ petitioners felt that if the service rendered by them as Excise and Taxation Inspectors was not being considered as service rendered in the ministerial cadre, they would be ineligible for consideration to the post of Excise and Taxation Officers.
The learned single Judge accepted the contention of the writ petitioners that there was no conscious decision to apply the draft rules and consequently for the post of Excise and Taxation Officer, the writ petitioners are entitled to be considered without any bar of eligibility as their juniors had already been considered for the post.
On appeal, the Division Bench proceeded on the assumption that the draft rules though not promulgated were rightly implemented.
The Division Bench dealt with the question whether the service rendered on transfer to the ex cadre would be available to the writ petitioners in the matter of their promotion to the higher posts thus: "In view of this, question that calls for determination is as to whether on the return of the writ petitioners from the post of Excise and Taxation Inspectors to the Ministerial cadre, the service rendered by them on the post of Excise and Taxation Inspector could by deeming fiction be considered as having been rendered in the Ministerial cadre? The answer to this question is that such a service is to be counted as if the petitioners were always in the Ministerial cadre.
Once it is held that the petitioner lien was only suspended under Rule 3.14(b) of the Punjab Civil Service Rules, the petitioners had a right to come back to their posts in the Ministerial cadre and once that is so, the rest would follow as if for all times deemingly they were in the Ministerial cadre.
" The Division Bench relied on the decision of this Court in State of Mysore & Anr.
vs P.N. Nanjundiah & Anr., , and opined that the entire service rendered by the petitioners as Excise and Taxation Inspectors will be considered in the Ministerial cadre and if that is counted the petitioners would be eligible for promotion under the relevant rules.
It rejected the contention that the petitioners could not be said to be retaining a lien in the Ministerial cadre as they had successfully completed the period of probation as Excise and Taxation 736 Inspectors and they will be deemed to be confirmed there.
The Division Bench endorsed the view that the revival of the lien essentially means that it stands revived with effect from the date it had been suspended, and dismissed the appeals observing: ". we may observe that the petitioners shall now be considered forthwith for the posts of ETOs from the date their juniors were promoted and if found suitable they will be promoted to that rank from the dates their juniors were promoted and they would be entitled to all the consequential benefits arising out of their promotion from the said date.
" Shri P.P. Rao, the Senior Counsel for the appellants, and Shri G.L. Sanghi, the Senior Counsel for the respondents (writ petitioners), conceded that both parties claim promotion to the post of Excise and Taxation Officers only by virtue of the provision in the amended Rule 5 of Class II Rules and, therefore, the question whether there had been conscious application of the said rule before promulgation is only academic.
We agree with the view of the High Court that for the purpose of present controversy we have to assume that the amended Rules were rightly implemented before they were formally promulgated in effecting the promotions now challenged.
The appellants maintain that the Division Bench as clearly wrong, and that the petitioners in order to claim the benefit of promotion from the ministerial cadre under the amended Rules have necessarily to satisfy the eligibility test.
To be more specific, they should have actual experience of five years in the ministerial cadre even when they are reverted back to that cadre.
We have said that the petitioners were appointed as Inspectors by transfer under Rule 7 of the Punjab Excise Subordinate Service Rules, 1943 and thereafter they belonged to a different cadre.
Their lien had also been suspended after three years.
The Punjab Civil Services Rules, Volume, I, Part I, Rule 3.14 reads: "3.14.
(a) A competent authority shall suspend the lien of a Government employee on a permanent post which he holds substantively; if he is appointed in a substantive capacity 737 (1) to a tenure post, or (2) to a permanent post outside the cadre on which he is borne, or (3) provisionally, to a post on which another Government employee would hold a lien, had his lien not been suspended under this rule.
(b) A competent authority may, at its option, suspend the lien of a Government employee on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this rule, is transferred, whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien, for a period of not less that three years.
(c) xxx xxx xxx (d) If a Government employee 's lien on a post is suspended under clause (a) or (b) of this rule, the post may be filled substantively, and the Government employees appointed to hold it substantively shall acquire a lien on it: Provided that the arrangements shall be reversed as soon as the suspended lien revives.
Note 1.
xxx xxx xxx Note.
When a post is filled substantively under this clause, the appointment will be termed "a provisional appointment"; the Government employee appointed will hold a provisional lien on the post; and that lien will be liable to suspension under clause (a) but not under clause (b) of this rule.
(e) xxx xxx xxx (f) A Government employee 's lien which has been suspended under clause (b) of this rule shall revive as soon as he ceased to be on deputation out of India or on foreign service or to hold a post in another cadre . " 738 According to the appellants, the respondents having been transferred to the cadre of Excise and Taxation Inspectors and having continued there for 14/15 years beyond the period of probation, their lien over ministerial post was suspended.
The consideration of their names for the purpose of promotion as Excise and Taxation Officers from the ministerial post did not arise.
The amended Rule introduced eligibility that would exclude the service rendered by the petitioners in other posts and if such service is excluded, the petitioners would be ineligible.
The lien of the petitioners had been suspended by the competent authority under the mandatory provisions of Rule 3.14(b) referred to.
They could seek reversion to their parent ministerial cadre and claim consideration for promotion to the post of Excise and Taxation Officers according to their eligibility and suitability.
The next below rule does not apply to the case of promotion to the higher posts in other cadres under specific rules governing promotions to those cadres.
The recruitment to the post of Excise and Taxation Officer is governed by Punjab Excise and Taxation Department (State Service Class II) Rules, 1956.
The eligibility of Taxation Inspectors and Excise Inspectors and members of ministerial establishment for the post is governed by the amended Rule 5.
According to the proposed Rule 5(b)(ii), promotion to the post of Excise and Taxation Officer is to be made from amongst the Superintendents, Assistants, Accountants and Senior Scale Stenographers working in the Excise and Taxation Commissioners Head Office and in the District and Divisional Offices.
In view of this provision, the Taxation Inspectors and Excise Inspectors whose lien against their posts in the ministerial cadres has been suspended and who are not working on the eligible ministerial establishment posts and who have been working as Taxation Inspectors and Excise Inspectors for a long number of year cannot claim that they are to be considered automatically for recruitment to the post of Excise and Taxation Officer.
The normal line of promotion within the cadre for the members of the ministerial establishment was from the lowest post of a Clerk to the highest post of a Superintendent.
So also the further channel of promotion was open to the Inspectors to the post of Excise and Taxation Officer.
If the Inspectors are to be considered for the post of Excise and Taxation Officer from the quota of the ministerial establishment, that will result in the Inspectors getting two avenues for promotion while the ministerial staff losing even the one which had been provided.
The appointment to the ex cadre posts of Excise and Taxation Inspector is made by transfer in accordance with the provisions of Rule 739 7 of Subordinate Service Rules, 1943 which provide that appointment to the cadre post shall be made by transfer or deputation of an official already in Government service.
It implies that any Government employee irrespective of his office can be appointed as Excise or Taxation Inspector.
The Excise and Taxation Inspectors ' cadre is distinctly different from the ministerial cadre having duties or functions altogether different in nature and content.
Instead of waiting for their turn to be promoted from the Inspectors quota, the petitioners have laid the claim to the quota in the ministerial service.
The appellants are also persons who have been confirmed in the ministerial cadre and have worked for more than 20 years as such.
The result would be that there would be no promotions to the post of Excise and Taxation Officer from the ministerial staff as such, and those who got transferred as Inspectors would be getting double benefit by claiming promotion to the post of Excise and Taxation Officer as members of the ministerial staff while retaining their right to claim promotion from within the quota specifically provided for the Inspectors.
The petitioners with suspended lien on the post of Clerk and continuously holding the Inspector 's post for over 13 years cannot be considered to be at par with officials continuously working on the ministerial post for over 21 year.
From the scheme of the Rules and the method of recruitment, it is clear that the petitioners while working as Inspectors on appointment by transfer to that cadre had the advantage of being considered for promotion as Officers under the amended Rule 5 out of the quota for Inspectors, while the ministerial staff to the exclusion of the Inspectors were entitled to certain percentage.
The petitioners without being on the ministerial cadre even by reversion could not claim promotion as a member of the ministerial cadre without revival of the lien.
Such revival could be effected only on reversion and not while the lien remained suspended.
When the rule requires members of the ministerial staff to have experience as such for five years to satisfy the elibility requirement, the Inspectors cannot claim that service in the different cadre with their lien suspended be equated to service in the ministerial cadre and treated as experience in the ministerial cadre even if the functions and duties of the Inspectors may be of identical nature.
The purpose of the rule is to provide promotional avenues to different categories within specified limits.
The benefit intended for one category cannot be extended to another category by stretching the rules, particularly when no injustice would result.
The argument that the petitioners if found ineligible would remain in the lower cadre while their juniors are being promoted to the higher cadre 740 cannot be coutenanced.
Even when the juniors continued in the lower ministerial cadre for long years, the petitioners were in a different cadre which had a larger promotional avenue and they are satisfied in that post.
If the petitioners did not exercise their option to revert back to the ministerial cadre at the right time to qualify themselves for further promotion, the appellants cannot be deprived of the benefit they derived by continuing in the lower cadre on account of that situation.
The High Court was clearly wrong in holding that the petitioners have acquired eligibility by rendering service in the cadre of Inspectors since their lien had been suspended.
The decision in State of Mysore 's case (supra) is distinguishable on facts.
Rule 53(b)(i) of the Mysore Service Rules considered in that case provided that service in another post whether in a substantive or officiating capacity shall count for increments in the time scale applicable to the post on which the Government servant holds a lien or as well as in the time scale applicable to the post, if any, on which he would hold a lien had his lien not been suspended.
The Court noticed that the service of an officer on deputation to another department is treated as equivalent to the service in the parent department under the rule.
On account of that equation between the service in the two departments, it was held that the service on deputation should be deemed to be rendered in the parent department.
The ratio of the decision is, therefore, not applicable in the present case.
In C. Narasinga Rao & Ors.
vs State of Andhra Pradesh by its Secretary, Vol.
2 1968 S.L.R.644, Rule 9 of the Andhra Pradesh State and Subordinate Service Rules provided that service rendered in the transferred department should be deemed to have been rendered in the parent department for promotion and seniority.
And when the rule is thus specific, it was held that the petitioners ' service in the police department should be deemed to have been rendered in the parent department entitling them to promotion.
If the Government employee was on deputation or holding a post in another cadre, the lien shall revive as soon as he ceased to hold the post in another cadre.
There is no revival of the lien during the period the employee continues to hold a post in another cadre.
Therefore, during the period the suspension is operative, the employee cannot claim that he had been continuing in the post in the parent cadre and gaining experience.
When the rule is clear and specific that for the purpose of promotion from the cadre of Superintendents, Assistants, Accountants, Senior Scale Stenographers to the post of Excise and 741 Taxation Officers, the eligibility qualification is 'experience of working 'as such ' for five years ' the employee is not entitled to claim the experience in the ex cadre as experience of working in the ministerial cadre.
In the light of what has been stated above, we are unable to uphold the decision of the High Court.
The writ petitions are liable to be dismissed.
Accordingly, we allow the appeals.
R.N.J. Appeals allowed.
|
In the Punjab Excise and Taxation Department there were two separate cadres known as "Assistant Excise & Taxation Officers" governed under the State Service Class III A Rules, 1956 and "Excise & Taxation Officers" governed by the State Service Class II Rules.
Under the class II Rules, appointments were made in the ratio of(a) 50% by direct recruitment and (b) 50% by promotion from amongst Assistant Excise and Taxation Officers.
Likewise under the Class III A Rules 50% of the vacancies were filled by direct recruitment and 50% by promotion from the subordinate staff comprising the Taxation Inspectors, Excise Inspectors, Ministerial Staff Head Office and Ministerial Staff Sub office who within themselves had shares as laid down.
The Writ Petitioners and the contesting respondents Ram Saran and O.P. Singhla had initially joined the Punjab Excise and Taxation Department as clerks and were confirmed as such.
The Petitioners were promoted and appointed as Excise/Taxation Inspectors by transfer under Rule 7(a)(ii) of the Punjab Excise Subordinate Service Rules, 1943 and their lien in the taxation department suspended under Rule 3.14(b) of the Punjab Civil Service Rules.
Whereas Ram Saran and O.P. Singhla continued in the ministerial cadre and were Assistant and Superintendent respectively at the relevant time.
730 Following reorganisation of the department, the carde of Assistant Excise & Taxation Officers was abolished and all the Assistant Excise & Taxation Officers were redesignated as Excise and Taxation Officers.
Consequently Class III A Rules became redundant.
As under Class II Rules there was no provision for promotion of subordinate staff direct as Excise & Taxation Officers the Government in order to provide avenues of promotion to the ministerial carde including Taxation Inspectors and Excise Inspectors brought in suitable amendments to these Rules on the following terms. "Rule 5.
The members of the service shall be recruited in the following manner namely: (a) xxx xxx xxx (b).
In the case of an Excise and Taxation Officer; (i) by promotion from amongst the Taxation Inspectors and Excise Inspectors who have an experience of working as such for a minimum period of five years; or (ii) by promotion from amongst the Superintendents, Assistant, Accountants and Senior Scale Stenographers working in the Excise and Taxation Commissioners Head Office and in the Divisional and District Offices of the Department of Excise and Taxation, Punjab." Applying the draft amended Rules before they were formally promulgated the contesting respondents Ram Saran and O.P. Singhla were promoted as Excise & Taxation Officers on 22.8.1983.
The Writ Petitioners who had been transferred earlier to other cardes of Excise/Taxation Inspectors and worked there for 14/15 years beyond the probation period were not considered.
They therefore, filed writ petitions in the High Court challenging the promotion of the appellants mainly on the ground that on the basis of their seniority and lien in the ministerial cadre, they had a right to be considered for promotion prior to the appellants.
The appellants and the State contended that if the Petitioners wanted to be considered for this post on the basis of their lien in the ministerial carde, they may seek reversion to this cadre and thereafter their case would be considered on merits in accordance with the eligilbility as prescribed under the amended Rule 5 which includes experience of working as such for a period of five years in the ministerial 731 cadre.
To this reply of the Writ Petitioners was that if the service rendered by them in the other cadre as Excise and Taxation Inspectors was not considered as service rendered in the ministerial cadre, they would be ineligible for consideration to this post.
The learned single judge accepted the petitioners ' contention and in allowing the Writ Petitions held that there was no conscious decision to apply the draft rules and consequently the Petitioners were entitled to be considered for the post of Excise & Taxation Officers without any bar of eligibility as their juniors had already been considered.
On appeal, the Division Bench took the view that the draft rules, though not promulgated were rightly implemented.
However on the question whether service rendered by the Petitioners on transfer to the other cadres could be considered as having been rendered in the Ministerial cadre, the Division Bench relying on the decision of this court in State of Mysore & Anr.
vs P.N. Nanjundiah & Anr., , held that it did and that if that is counted the petitioners would be eligible for promotion under the relevant rules with their suspended lien reviving with effect from the date it had suspended and they shall be considered forthwith.
Against this order Ram Saran and O.P. Singhla have preferred appeals by special leave and so has the State separately.
Reversing the decision of the High Court and allowing the appeals dismissing the writ petitions, this Court, HELD: From the scheme of the Rules and the method of recruitment it is clear that the petitioners while working as Inspectors on appointment by transfer to that cadre had the advantage of being considered for promotion as Officers under the amended Rule 5 out of the quota for Inspectors, while the ministerial staff to the exclusion of the Inspectors were entitled to certain percentage.
[739E] The petitioners without being on the ministerial cadre even by reversion could not claim promotion as a member of the ministerial cadre without revival of the lien.
Such revival could be effected only on reversion and not while the lien remained suspended.
[739F] If the Government employee was on deputation or holding a post in another cadre, the lien shall revive as soon as he ceased to hold the post in another cadre.
There is no revival of the lien during the period the employee continues to hold a post in another cadre.
Therefore, during the period the suspension is operative, the employee cannot claim that he had been continuing in the post in the parent cadre and gaining experience.
[740G] 732 When the rule is clear and specific that for the purpose of promotion from the cadre of Superintendents, Assistants, Accountants, Senior Scale Stenographers to the post of Excise and Taxation Officers, the eligibility qualification is 'experience of working ' as such ' for five years, the employee is not entitled to claim the experience in the ex cadre as experience of working in the ministerial cadre.
[740H 741A] State of Mysore & Anr.
vs P.N. Nanjundian & Anr., , distinguished.
C. Narasinga Rao & Ors.
vs State of Andhra Pradesh by its Secretary, Vol. 2 relied upon.
|
Civil Appeal Nos.
(NCE) 1044 & 1045 of 1991.
From the Judgement and Order dated 29.10.1990 of the Bombay High Court in Election Petition No.5 of 1990.
K.K. Venugopal, Harish Salve, P.H. Parekh, Sunil Dogra, V.D. Joshi and A.M. Khanwilkar for the Appellants.
A.S. Bobde, V.A. Bobde, S.D. Mudliar, C.K. Ratnaparkhi, B.P. Pandye, and Mrs. Nirmal Chhagan for the Respondent.
The Judgement of the Court was delivered by SAWANT, J. These two petitions arise out of a common order dated 29th October, 1990 passed by the Bombay High Court in Election Petition No. 5 of 1990 and raise a common question of law.
Hence they are disposed of by this judgement.
Leave is granted in both the petitions.
The election petition in which the impugned order is passed was filed by a defeated candidate (Respondent No.1) against the elected candidate (Respondent No.2) and other contesting candidates challenging the validity of the election of respondent No.2 to the Lok Sabha from the Bombay South Central Constituency in the election held on November 24, 1989.
The election of respondent No.2 is challenged in the petition, among other things, on the ground of corrupt practices under sub sections (2), (3) and (3A) of Section 123 of the Representation of the People Act, 1951 (hereinafter referred to as the "Act").
It appears from the impugned order that the High Court has reached a stage in the trial of the election petition where examination in chief and cross examination of about 14 witnesses has been completed and various documents have been brought on record.
It is at this stage that the impugned order has been made, the operative part of which reads as follows: 762 "In this Election Petition, the Petitioner seeks to set aside the election of Respondent No.1 on the ground of corrupt practice under Sections 123(3) and 123(3A) of the said Act.
The Petitioner has led documentary and oral evidence.
Respondent No.1 has tendered documents but has led no oral evidence.
The other Respondents have remained absent even though served.
Petitioner and Respondent No.1 have argued their respective cases.
The learned Advocate General has also drawn my attention to Section 99 of the said Act which requires this Court, whilst giving a finding that corrupt practice has been proved, to name all persons who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice.
This however must be after having given to such persons notice to appear and show cause why he/they should not be so named.
At this stage, I am of the prima facie opinion that the charges alleged in the Petition of corrupt practice under Section 123(3) and 123(3A) of the said Act have been proved to have been committed and that Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr. Manohar Joshi Are (to use the words of Supreme Court) collaborators in such corrupt practice.
Accordingly, I direct that notices under Section 99 of the Representation of the People Act, 1951, shall be given to Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr. Manohar Joshi to appear before me on 3rd December, 1990, to show cause why they should be not be so named in the order on the Election Petition.
Each notice shall state that the person named in the notice shall have an opportunity of cross examining all witnesses who have given evidence against him and that he shall have a right of calling evidence and of being heard.
I direct that to all the notices shall be annexed photo copies of: (a) the Petition, the written statement of Respondent No.1 and the Issues.
763 (b) the oral depositions of the petitioners witnesses.
(c) all exhibits, except Exhibits RR, SS to YY, AAA, AAA1, AAAA, BBBB, BBBB1 and Exhibits 1 to 8.
(d) this order.
I also direct that along with all the notices shall be sent audio cassettes containing copies of Exhibits SS to YY.
" Aggrieved by this order, two of the persons named therein, viz., Manohar Joshi and Chhagan Bhujbal have approached his Court by way of these two separate appeals by special leave.
The order is assailed on the ground that although it directs the issuance of notice to the appellants to answer allegations of corrupt practices allegedly committed by them, it is vague and does not indicate which of the corrupt practices they are alleged to have committed and which evidence on record supports them.
In the absence of the specific charge/s and the evidence in support of it/them indicated in the order and the notices issued pursuant to it, the appellants are at a loss to comprehend the case that they are called upon to meet.
They are thus put to a disadvantage and are gravely prejudiced.
It is pointed out that the consequences of naming a person on his being found guilty pursuant to such notice are grave inasmuch as, among other things, he incurs a disqualification for contesting election under Article 103 of the Constitution read with Section 8A of the Act.
It is also urged that even otherwise the notice to appear and the opportunity to show cause contemplated under the proviso to sub section (1) of Section 99 of the Act enjoins upon the Court to state precisely the charge and the evidence which the person summoned is called upon to meet.
It does not contemplate a vague notice such as the one which is issued and is directed to be issued by the impugned order.
For reasons more than one, we find great force in these submissions.
Shri Bobde, the learned Advocate General of Maharashtra who appeared for respondent No.1 could not seriously dispute these contentions.
However, he pointed out to us an earlier order dated December 1, 1988 of this Court passed in Special Leave Petition No. 13163 of 1988 which was filed against a similar order passed by the Bombay High Court in Election Petition No.1 of 1988.
This Court by its said order had held as follows: 764 "We do not think that in a notice under Section 99 of the Representation of the People Act, 1951 the portions of the speeches of the petitioner are required to be specific for the purpose of sub sections (3) and (3A) of Section 123 of the said act.
The petitioner, however, will be at liberty to make an application before the Court for specifying those portions which, Prima facie, according to the Court, come within the purview of sub sections (3) or (3A) of Section 123 of the said Act.
If any such application is made, the Court will dispose of it in accordance with law.
The special leave petition is disposed of accordingly.
" The provisions of the Act which have a cumulative bearing on the present question are contained in sections 82, 83, 97, 98, 99, 107, 123(3) and 123(3A) of the Act.
Section 82 enjoins upon the election petitioner to join as respondent to the petition, in addition to other necessary parties, any candidate against whom allegations of any corrupt practice are made in the petition.
Section 83 which deals with the contents of the election petition states, among other things, as follows: "83.
Contents of petition. (1) An election petition (a) . . . . . . . . (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c). . . . . . . .
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
" 765 It is clear from the reading of these two sections that even in the election petition where allegations of corrupt practices are made, full particulars of the alleged corrupt practice including as fuller a statement as possible and the names of the parties who are alleged to have committed such practice and the date and place of the commission of each such practice have to be furnished.
What is further, the allegations of the corrupt practice have to be accompanied by an affidavit in support both of the allegations as well as the particulars thereof, and if there are any schedules or annexure to the petition in support of the corrupt practice, they have also to be signed by the petitioner and verified by him in the same manner as the petition.
This is a mandatory requirement.
The object of the said provisions is obvious.
The party and it includes not only the returned candidate but all other candidates against whom the corrupt practice is alleged, must have an adequate notice of the precise allegations made against him so that he has a proper opportunity to meet them.
Section 97 states that when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and the petition had been presented calling in question his election.
The section requires that before the returned candidate or such other party, as aforesaid, gives such evidence, he should have, within 14 days from the date of the commencement of the trial, given notice to the High Court of his intention to do so and that notice has to be accompanied by the statement and particulars required by Section 83 in the case of an election petition and has to be signed and verified in the like manner.
We have already referred to the relevant requirements of Section 83 with regard to the furnishing of the particulars of the corrupt practice.
Section 98 states that on the conclusion of the trial of an election petition, the High Court shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
Then follows Section 99 of which what is relevant for our purpose in sub section (1) which reads as follows: "99.
Other orders to be made by the High Court. (1) At 766 the time to making an order under section 98 the High Court shall also make an order (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording (i) a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; and (ii) the names of the persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and (b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid.
Provided that a person who is not a party to the petition shall not be named in the order under sub clause (ii) of clause (a) unless (a) he has been given notice to appear before the high Court and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard.
" It is clear from the provisions of sub clause (i) and (ii) of clause (a) of sub section (1), that at the time of deciding the petition, the Court has to record a finding that a corrupt practice is proved to have been committed and that it is committed by a particular person.
The Court has not only to name the person but also the nature of the corrupt practice committed by him.
If the person is a party to the petition, it is not necessary to hear him separately before recording such finding.
However, when he is not a party to the petition, before such serious finding is recorded against him, he must have the same opportunity as the party to the petition, to meet the allegations against him.
In that respect, he stands on the same footing as the party to the petition against whom such a finding is to be recorded.
He cannot be 767 discriminated against and made to suffer any disadvantage because he is not a party to the petition.
This is the precise object which is sought to be secured by the proviso to the Section.
Section 107 of the Act states that the order of the High Court under Section 98 or Section 99 shall take effect as soon as it is pronounced by the High Court subject, of course, to the stay, if any, granted by the High Court itself or in appeal by the Supreme Court.
Section 123 enumerates and defines the corrupt practices for the purposes of the Act.
We are concerned in the present case with the corrupt practices mentioned in sub sections (3) and (3A) of the said section.
Those sub sections read as follows: "(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
" It is clear from the aforesaid sub sections that each of them enumerates not a single corrupt practice but various distinct corrupt practices.
They are as follows.
Sub section (3) speaks of the corrupt practices of (A) the appeal (i) to vote, or (ii) to refrain from voting for any 768 person on the ground of (a) his religion.
(b) his race, (c) his caste, (d) his community, or (e) his language; (B)(i) of the use of, or (ii) of appeal to (a) religious symbols (b) national symbols such as the national flag or (bb) the national emblem either for the furtherance of the prospects of the election of that candidate, or for prejudicially affecting the election of any candidate.
Likewise Sub section(3A) consists of different corrupt practices as follows: (i) the promotion of, or (ii) attempt to promote feeling of enmity or hatred between different classes of the citizens of India on ground of (a)religion, (b) race, (c) caste, (d) community, or (e) language either for the furtherence of the prospects of the election of that candidate or for prejudically affecting the election of any candidate.
Hence merely by enumerating in the notice the numbers of sections, viz., 122(3) and 122(3A) as is directed to be done by the impugned order, the person summoned does not understand which of the various corrupt practices mentioned in the sections is alleged against him and what precise charge he has to meet.
Section 8A of the Act states that the case of every person who is found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period.
The period of disqualification is not to exceed 6 years from the date on which the order made in relation to him under Section 99 takes effect.
Subsection (3) thereof requires the President to obtain the opinion of the Election Commission on such question and to act according to such opinion.
The President exercises this power under Article 103 of the Constitution and the powers of Election Commission when such a reference is made by the President are governed by Section 146 of the act.
769 12.
A reading of all the aforesaid provisions together would show that the proceedings pursuant to the notice issued by the High Court under Section 99 of the Act are of a quasi criminal nature.
It has also been held so by this Court in so many words, in some of the decisions: See D.P.Mishra vs Kamal Narain Sharma & Ors . , and Rashim Khan vs Khurshid Ahmed & Ors. ,[1975] 1 SCR 643.
Where, therefore, a corrupt practice is alleged, the trail of an election petition on such charge is of a quasi criminal nature, and a heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge.
This is as it should be since the naming of a person as having committed a corrupt practice has a serious consequence of disqualifying him from being chosen as or from being member of any House of the Parliament or of the Legislative Assembly or Council of a State for a period upto 6 years.
What is further, as pointed out above, when the legislature requires that the election petition shall contain full particulars of each and every alleged corrupt practice including as fuller a statement as possible of the names of the parties and the date and place of the commission of such practice, it would be contrary to the object of the said provisions to hold that when a notice is issued under Section 99 against a person who is not a party to the election petition for holding him guilty of any corrupt practice, the notice should not apprise him of the precise charge against him and give him the full particulars thereof.
Judged in the light of these requirements of law there is no doubt that the impugned order directing the issuance of notice as stated theren, is extremely vague and defective to the point of being contrary to the provision of law.
We have reproduced above the relevant portion of the order.
The order (i) directs issuance of an omnibus notice against the appellants and one other person;(ii) states again in an omnibus manner that the Court is satisfied that the charges alleged in the petition of corrupt practices under Section 123(3) and 123(3A) of the Act have been proved to have been committed by all of them (iii) further directs that each notice shall state that the person named in the notice shall have an opportunity of cross examining all witness who have given evidence against him and that he shall have a right calling evidence and of being heard.
It then directs that to all the notices to be issued, copies of (a) the petition and the written statement, (b) oral deposition, (c) all exhibits (d) the impugned order itself and (e) audio cassettes containing copies of Exhibits SS to YY should be annexed 770 15.
The notices directed to be issued and which have accordingly been issued are defective in many respects.
In the first instance, they do not spell out the precise corrupt practice which each of the appellants is called upon to meet.
As has been pointed out above, Section 123(3) does not refer to one corrupt practice but a variety of them.
Yet the notice does not specify which particulars corrupt practice is sought to be brought home to each of the appellants.
Secondly, although the copies of the petition, written statement etc. are directed to be sent along with the notices, the order does not direct the notices to state and therefore, they do not state which of the portions of the petition, written statement, oral evidence, documentary evidence and audio cassettes is being relied upon to sustain which of the charges and against which of the appellants.
As pointed out earlier, it is a pre condition for the trial of the charges of the corrupt practices that the person called upon to face the charge should be apprised, in advance, of the precise charge or charges against him and also the precise evidence oral or documentary, which is sought to be relied upon in support of the said charge or each of the said charges.
It is obvious that the kind of notice which is directed to be issued by the impugned order is defective in all these respects and conveys nothing to the appellants.
The impugned order and the notices issued pursuant to it falling short of the requirement of law are, therefore, liable to be struck down.
It is true that this Court in its order dated December 1, 1988 had refused to interfere with a similar order and had held that such a notice is not against the provisions of the law.
It has, however, to be remembered in this connection that even while doing so, the Court had given an opportunity to the petitioner therein to make an application before the High Court for specifying those portions of the speeches of the petitioner which prima facie according to the High Court came within the purview of sub sections (3) or (3A) of Section 123.
The Court had further directed that if any such application is made, the High Court should dispose it of in accordance with law.
It appears that consequent upon the direction, an application was made by the petitioner for specifying the portions of the speeches which were sought to be relied upon to sustain the charges under sub sections (3) and (3A).
The High Court held that the provisions of Section 99 did not require it to analyse the evidence and specify either in the notice under the said section or at any time prior to hearing the person to whom it is issued, what portion or portions thereof seemed in its view prima facie to make out the case which he was called upon to answer.
771 This the High Court did in spite of the fact that it recorded correctly that the person to whom a notice under Section 99 is issued is entitled to be put in the same position as the elected candidate and that his position can be no better.
We have pointed out earlier that in fact the vague notice which is directed to be issued by the impugned order does in fact place the person against whom the notice is issued in a worse position than not only the elected candidate but other persons who are parties to the election petition.
It is with a view to see that he is not placed in a disadvantaged position as against the parties to the petition that it is necessary to apprise him also of the details of the specific charges against him in advance.
We have also pointed out that the trial being of a quasi criminal nature and the consequence of the named person being serious, he is entitled to this minimum safeguard.
The view taken by the High Court was, therefore, obviously wrong.
Unfortunately, the special leave petition filed even against that order of the High Court came to be dismissed in limine and without a speaking order.
We are of the view that for the reasons which we have stated above, neither the order of December, 1 1988 nor the later non speaking order of January 23, 1989 lays down the correct position of law and should be deemed to have been overruled by this decision.
However, we make it clear that these observations will not in any way affect the validity of the decision rendered by the High Court in that election petition being Election Petition No. 1 of 1988.
We further make it clear that the law laid down here will operate only prospectively, i.e., to final orders of indictment passed under Section 99 of the Act, hereafter.
In the view we have taken above, we should set aside the impugned order and the notices issued in each case in pursuance of the said order.
However, we are of the view that it is not necessary to do so.
Instead, we direct that the appellants will appear before the High Court on 25th March, 1991 and the High Court will on that day or on such other day as it may deem convenient, issue proper notices to the appellants in the light of the law laid down and then proceed to hear and dispose of the notices in accordance with law.
The appeals are allowed accordingly.
In the circumstances of the case, there will be no order as to costs.
R.S.S. Appeals allowed.
|
In the 1989 elections to the Lok Sabha, respondent No. 2 was declared elected from the Bombay South Central Constituency.
One of the defeated candidates (respondent No. 1) filed an election petition challenging the validity of the election of respondent No. 2 inter alia on the ground of corrupt practices under sub section (2),(3) and (3A) of section 123 of the Representation of the People Act, 1951.
The High Court having reached the stage in the trial when it was prima facie of the opinion that the charges alleged in the petition, of corrupt practices falling under sections 123(3) and 123(A) had been proved to have been committed, it proceeded under section 99 to name the collaborators in such corrupt practices.
The High Court accordingly directed issuance of notices to three persons.
Aggrieved by this order, two of the person named therein approached his Court by way of two separate appeals.
Before this Court, it was contended on behalf of the appellants that (i) the consequences of naming a person on his being found guilty pursuant to such notices were grave; (ii) the proviso to sub section(1) of section 99 of the Act enjoined upon the Court to state precisely the charges and the evidence which the person summoned was called upon to meet; and (iii) the notices to the appellants to answer allegations of corrupt practices allegedly committed by them were vague.
Allowing the appeals and directing the High Court to issue proper notices to the appellants in the light of law, this Court, HELD: (1) It is clear from the provisions of sub clauses (i) and (ii) of clause (a) of sub section (1) of section 99, that at the time of deciding 760 the election petition the Court has to record a finding that a corrup practices is proved to have been committed and that it has been committed by a particular person.
The Court has not only to name the person but also the nature of the corrupt practice committed by him.[766F G)] (2) If the person is a party to the petition, it is not necessary to hear him separately before recording such finding.
However, when he is not a party to the petition, before such serious finding is recorded against him, he must have the same opportunity as the party to the petition, to meet the allegations against him.
In that respect, he stands on the same footing as the party to the petition against whom such a finding is to be recorded.
He cannot be discriminated against and made to suffer any disadvantage because he is not a party to the petition.
[766H 767] (3) Where a corrupt practice is alleged, the trial of an election petition on such charges is of a quasi criminal nature, and a heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge.
This is as it should be since the naming of a person as having committed a corrupt practice has a serious consequence of disqualifying him from being chosen as or from being member of any House of Parliament or of the Legislative Assembly or Council of a State for a period upto 6 years.
[769B C) D.P. Mishra vs Kamal Narain Sharma & Ors., [1971] 3 S.C.R. 257 and Rashim Khan vs Khurshid Ahmed & Ors., [1975] I.S.C.R. 643, referred to.
(4) When the legislature requires that the election petition shall contain full particulars of each and every alleged corrupt practice including as fuller a statement as possible of the names of the parties and the date and place of commission of such practice, it would be contrary to the object of the said provisions to hold that when a notice is issued under Section 99 against a person who is not a party to the election petition for holding him guilty of any corrupt practice, the notice should not appraise him of the precise charge against him and give him the full particulars thereof.[769D E] (5) The impugned order directing the issuance of notice is extremely vague and defective to the point of being contrary to the provisions of law.
The notice is of an omnibus character.
Section 123(3) does not refer to one corrupt practice but a variety of them.
Yet the notice does not specify which particular corrupt practice is sought to be 761 brought home to each of the appellants, and does not state which of the portions of the petition, etc.
is being relied upon to sustain which of the charges and against which of the appellants.
[769F G, 770B] [Order dated December 1, 1988 in Special Leave petition No. 13163 of 1988 and the later non speaking order of January 23, 1989 in the matter overruled.] [771D]
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N: Criminal appeal No. 512 of 1979.
From the Judgement and Order Dated 18.7.1979 of the Allahabad High Court Crl.
A No. 564 of 1974.
U.R. Lalit, Sobhag Mal Jain, Sudhanshu Atreya, Ms. P. Jain and S.K. Jain for the Appellants.
Vijay Bahuguna, Prashant Chaudhary and D. Bhandari (NP) for the Respondent.
The Judgement of the Court was delivered by V.RAMASWAMI, J.
The four appellants along with 15 others were charged for offences punishable under Section 302 read with section 149 and also section 201 read with section 149 and section 147 and 148 of the Indian Penal Code.
The charges were that they were members of an unlawful assembly, in prosecution of the common object of namely to deter Ram Sewak (PW2), from filing the nomination paper for the post of Pradhan Gaon Sabha Tikhra and to commit the murder of his associates including one Gajendra Singh Yadav (deceased), a resident of village Bibiapur and in furtherance of that common object did commit the murder of the said Gajendra Singh Yadav and live cartrides belonging to the deceased.
They were also charged that in furtherance of the said common objects and knowing that the murder of the said Gajendra Singh was punishable with death or imprisonment for life and caused the evidence of the said offence to disappear by scraping the blood stained earth at the scene of occurrence and burning it and taking away the dead body of Gajendra Singh and thereafter burning it with the intention of screening of evidence.
The first Additional District and Sessions Judge, Kheri in Sessions Trial No. 264 of 1973 acquitted all the accused persons of all the charges on the ground that there are many infirmities rendering the prosecution evidence unworthy of belief.
The State of Uttar Pradesh preferred Criminal Appeal No. 654 of 1974 before the Lucknow 859 Bench of the Allahabad High Court.
The High Court set aside the acquittal of the first appellant Bhupendra Singh (1) and convicted him for offence under section 302 of the Indian Penal Code and sentenced him to a term of life imprisonment.
The High Court also set aside the acquittal of the second, third and fourth appellants (A4, 7 and 8) in part, convicted them under section 201, IPC and sentenced them to a term of seven years rigorous imprisonment under that section.
The acquittal of the appellants under the remaining charges were confirmed.
The High court also acquitted the other 15 appellants of all the charges.
The prosecution case was that the deceased and Ram Sewak (PW2) who are residents of village Bibiapur alongwith Tarun Kumar (PW1) son of the deceased, Ram Avtar Yadav (PW3) and their party people came to the village Padarial Tula in a bullock cart on 25.4.1972 for the purpose of filing the nomination papers of Ram Sewak (PW2) for the election of Pradhan of Gaon Sabha.
they reached around 10.30 A.M. the Mela Maidan near the compound of school cum temple in village Padaria Tula.
They left the bullock cart and the bullocks in a nearby place to the west of the eastern pathway about 50 paces away from the school where the nomination papers had to be filed.
Bhupendra Singh, the first accused was also a candidate for the office of Pradhan of Gaon Sabha.
He had also come for filing the nomination along with the other accused who were his supporters.
On seeing the party of the deceased arrive Bhupendra Singh enquired Ram Sewak (PW2), whether he had come to file nomination paper against him.
At that time Gajenddra Singh, deceased intervened and challengingly told the first accused that he should ask him.
This resulted in verbal altercation between the first accused and the deceased.
The first accused then fired a shot with his rifle at the deceased and on receiving the bullet injury the deceased fell on the ground.
The prosecution case further was the six other accused had also guns and they also fired at the deceased.
The other accused who were armed with lathis and ballams, physically assaulted the deceased.
Thereafter the accused dragged the deceased to a small mound on the west of the scene of occurence and then loaded the dead body on the trolley of a tractor belonging to the first accused, which had been used by the accused to reach at the scene and which driven by the first accused and the deceased was taken away.
All the accused got into the trolley and shouting loudly that they are going to burn the body and throw its remains in the water drove the tractor towards the north.
PWs 1 to 6 are stated to be eye witnesses to this part of the occurrence.
PWs 7,8,9 and 10 are stated to have seen the first accused driving the tractor to 860 which the trolley was attached and the three other appellants and 15 or 16 more people sitting on the tractor and going towards a revolt shouting that they are taking the body of Gajendra Singh and that the will be burnt and thrown into the river.
PW 10 Lalji also claimed that he saw the burning of the dead body near the river and the ashes thrown in river suita.
Tarun Kumar PW1 son of the deceased went to his village Bibiapur, wrote the report exhibit Ka. 1 and gave the first information report before the Station House Officer Thana Mira which is about 12 miles from the scene of occurrence at 3.30 PM on that day.
Rama Nand Tewari (PW17) took up the investigation reached the scene of occurrence at 5.30 P.M. and seized some blood stained earth at a point market `A ' in the plan and also some ashes, besides 55 pellets wads, teeth and some buttons on the spot under Mahazars which were attested by Rajendra Prasad (PW4) and Durga Prasad (PW5) and another.
On the 27th of the April, 1972 he interrogated Asharfi (PW7), Chhotanney (PW8), Reoti Prasad (PW9) and Lalji (PW10) and accompanied by them he reached the jungle at the outskirts of village Daulatpur where he found burnt leaves near a Shisham tree.
He seized burnt earth, ashes and burnt pieces of bones under recovery memo in the presence of Rajendra Prasad (PW4) and Durga Prasad (PW5).
On the 14th of May, 1972 in Village Mudia he interrogated Ram Autar (PW3), Ram Sewak (PW2), Gaua Din (PW6) and others submitted the charge sheet on 4th December, 1972.
As already stated the charge against the first appellant was one under section 302 read with section 149, IPC and the Trial Court had acquitted him of that offence.
The High Court on appeal by the State while setting aside the acquittal of the first appellant convicted him for the substantive offence under section 302, IPC on the ground that the he was the principal offender; that his shot resulted in death of Gajendra Singh and the other accused persons to whom no specific part has been brought home were entitled to benefit of doubt.
The High Court also believed the prosecution case relating to the disposal of body by taking it away from the scene of occurrence and burning it and throwing the ashes in the river but held that PWs 7,8,9 and 10 speak of the appellants alone by name as among the persons in the tractor and trolley and the names of others were not mentioned by them and therefore set aside the acquittal in respect of the offence under section 201 of IPC in so far as the appellants are concerned and convicted them and sentenced them a term of seven years of rigorous imprisonment.
The four appellants have filed the above criminal appeal against this conviction and sentence of the High Court.
861 There could be no doubt that an occurrence of type spoken to by the prosecution witnesses had taken place at the Mela Maidan, Padaria Tula, 25.4.1972 was the date fixed for filing nomination papers for the election of Pradhan of the Gaon Sabha comprising Padaria Tula.
The place where the nomination papers had to be filed is the school premises at the place.
Ramesh Chander Mishra (PW15) the Sub Deputy Inspector of Schools had been authorised to receive the nomination papers.
He was assisted by the Gram Sewak Verma (CW1) and Rajendra Prakash (PW14) among others.
They had stated in their evidence that they were inside the school premises and that around 10.30 A. M. they heard gun shots near the school.
PW2 Ram Sewak as also the first appellant Bhupendra Singh had come there to file their nomination papers along with other party people.
The investigating officer had made certain recoveries from the scene of occurrence along with bullock cart and the two bullocks in which the deceased and his party had come to the sense.
The evidence of PWs 1 to 6 are also uniform that the occurrence had taken place at that place.
We can therefore, safely assume that the incident took place at the Mela Maidan near the compound of School cum temple in Village Padaria Tula as stated by the prosecution.
It is true that the pieces of burnt bones recovered from the place where the body was stated to have been burnt were set to the Serologist but he was unable to tender any opinion regarding origin, sex and age.
Though, it was contended by the learned counsel for the appellants that the prosecution had not established that any such occurrence had taken place that morning and that Gajendra Singh had fallen the victim in such occurence we are unable to agree with the learned counsel that the occurrence had not taken place at all that Gajendra Singh had not been proved to have been killed.
There could be no doubt that corpus delieti could be established by the prosecution through direct evidence and that is what the prosecution had done in this case in the circumstances we are of the view that the prosecution had established that there was an occurence at 10.30 A.M. on 25.4.1972 at the place mentioned by the prosecution in which Gajendra Singh had fallen a victim and died.
Mr. Lalit, learned counsel for the appellants took us through the entire evidence and contended that the prosecution had not established the complicity of the first appellant for murder and the appellants for the offence of screening the evidence punishable under section 201, IPC.
In the FIR, Tarun Kumar (PW1) had mentioned the names of the four appellants and the presence of PWs 2 to 6 at the scene of 862 occurence.
All these eye witnesses had uniformly stated that they saw only Bhupendra Singh firing at the deceased which brought him down to the ground and stated further that immediately on hearing the first shot they ran and hid themselves behind the dilapidated wall of the temple and they had heard only 6 and 7 shots thereafter.
They have not attributed over acts to any of the accused other than Bhupendra Singh, the first appellant.
It is in those circumstances, the High Court confirmed the acquittal of all the accused other then Bhupendra Singh of the offence under section 302 read with section 149, IPC.
PWs 3 to 6 have stated in their evidence that during the course of verbal altercation between the first accused and the deceased, the first accused shot Gajendra Singh with rifle on the fore head.
On the basis of that shooting with the rifle on the fore head the first appellant was convicted for the substantial offence of murder under section 392 IPC and sentenced to life imprisonment.
In the FIR though Tarun Kumar, PW1 has stated that the first appellant fired at his father first, he had not stated that the bullet hit fore head bringing down its father to the ground.
It is stated in the FIR: "Bhupender then, first of all, fired on my father; along with, all other started firing.
My father then fell down as a result of attack by fire arms; then others with lathis and ballams started assaulting.
From there, I noticed that Bhupender Singh and his companions carried the dead body of my father, along with his gun, in his tractor trolley towards Karmapura." Thus though an overt act had been assigned to the first appellant in the FIR it had not been stated where the bullet shot hit the deceased.
It is true that in their oral evidence PWs 3 to 6 have assigned the first shooting to the first appellant but their evidence relating to the shot hitting at the fore head could not be accepted for more than one reason.
As already stated, PW1, first went to his village Bibiapur from the scene of occurrence at Padaria Tula, prepared the FIR in his house and then delivered the same at 3.30 P.M. at the Police Station.
In spite of time gap and his being with deceased at the time of the occurrence he had not specifically stated that the first aim of the first appellant hit the fore head of the deceased.
the names of PWs 2 to 6 are given in the FIR itself.
However, PWs 3 and 6 were examined by the Investigating Officer only on 14th of May and no explanation was forthcoming 863 as to why they were not examined earlier.
PWs1 and 2 did not say in their oral evidence that the shot aimed by the first appellant hit the fore head of the deceased.
PWs 3,4,5 and 6 gave the evidence to the effect that the first rifle shot of the appellant hit the deceased on his fore head.
But this part of the statement we are unable to believe because PW1, Tarun Kumar had not confirmed this either in the FIR or in his evidence as PW1.
This was also not stated by PW2 in his evidence or during investigation as seen from the evidence of PW17 the investigation officer.
PWs 3 and 6 were examined by PW17 only after 20 days i.e. on the 14th of May, 1972 though their names were mentioned in the FIR.
In the circumstances the contention of the learned counsel for the appellants that the possibility of an improvement in the case to implicate A 1 for a substantive offence cannot be ruled out.
While we could accept the case of the prosecution trying to establish corpus delicti through the evidence of PWs 1 to 6 we could not accept the evidence in so far as it not known where the bullet hit and whether that injury caused by the same and that injury is sufficient to cause death, the offence under section 302 IPC could not be said to have been made out.
In the circumstances, therefore, we are unable to agree with the High Court that the first appellant is guilty of offence under section 302 IPC of causing the death of Gajendra Singh.
However, we are of the view that while the first appellant shot at the deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death.
All the witnesses also say that the shot by A 1 brought down the deceased to the ground.
There could, therefore, be no doubt that the shot had caused some hurt or injury could have caused the death.
In the circumstances we consider that the offence would come under the second limb or second part of section 307, IPC.
Though imprisonment for life also could be awarded as sentence for such an offence on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment.
Accordingly we alter the conviction under section 302, IPC as one under section 307 IPC and sentence him to term of 10 years rigorous imprisonment.
So far as the offence under section 201 IPC is concerned the 864 prosecution relied upon the evidence of PWs 7,8,9 and 10.
The evidence of PWs 7,8 and 9 only go to show that they had seen 15 to 20 people sitting in the trolley of the tractor driven by the first accused.
They have referred to the names of the appellants among the 20 people who were in the trolley.
However, none of them had stated that they had seen the body of Gajendra Singh alive or dead in the trolley.
The prosecution tried to establish that the accused were carrying body of Gajendra Singh in the trolley from the statement of PW7 who said the Chet Ram one of the persons who was travelling in the trolley along with other and who is now dead was saying or shouting that: "Gajender Singh had been killed and he would roasted and eaten and thrown in the river." And the statement of PW3 that: "The people sitting the trolley were talking amongst themselves and uttering the words `today we have killed and brought a lion '" But PWs 7 and 8 had not given any such version to PW17 in their statements during investigation.
PW 9 turned hostile and his evidence is also worth nothing.
PW 10 had stated that Chet Ram said: "We have killed Gajendra Singh and brought him on his tractor why you have come here".
and then he ran about 250 steps towards the east and stood there but the version given in the statement before PW 17 was different.
This evidence can be relied on only for the purpose of showing that about 15 or 20 people were travelling in the trolley of a tractor driven by the first accursed which was going towards the river.
This evidence does not bring home the offence of screening the evidence.
Of course PW 10 said that the body was burnt with wooden pieces and grass after it was all burnt Chet Ram, who is now dead, collected the whole residual ashes and threw them in the Sutia rivulet.
he mentioned the name of Chet Ram and no other name.
Further though he sated to be neighbour of Ram Sewak PW 2 and Ram Sewak and himself used to meet everyday he did not tell PW 2 about the burning of the body of the appellants.
This witness also belongs to the Ahir community which is the community of the deceased Gajendra Singh also.
It appears that only the bones stated to have been recovered were sent for chemical analysis and the report of the serologist was that it was not possible to 865 give any opinion regarding the origin, sex and age.
The report had not even stated that they were human bones.
Though PW 10 had stated that there were with him two others at the time and PW 17 had taken PW 10 and the said two others also to the place where the body was stated to have been burnt, they had not been examined.
We have read the evidence carefully and the evidence also does not impress us that he is telling the truth.
In the result we set aside the conviction of the appellants under section 201, IPC.
The conviction of the first appellant is modified into one under section 307, IPC and we sentence him to 10 years rigorous imprisonment.
The bail bonds of appellants 2,3 and 4 are cancelled.
The first appellant is directed to surrender.
R.N.J. Appeal partly allowed.
|
Nineteen persons were tried by the Additional District and Session Judge, Khetri in S.T. No. 264 of 1973 for offences under section 302/149, 201/149, 379/149, 147 and 148 for the incident that took place on 25.4.1972 in village Padaria Tula (UP) on the day of filing of the nomination papers for election for the post of Pradhan Gaon Sabha, Tikhra in which fire arms were used by the party led by Bhupendra Singh accused no.l, who was also a candidate for the office of Pradhan of Gaon Sabha resulting in the death on the spot of Gajendra Singh, one of the supporters of the rival candidate Ram Sewak, P.W. 2.
The prosecution case is that both the rival candidates with their supporters had come to village Padaria Tula on the morning of 25.4.1972 where nomination papers had to be filed.
On seeing the party of the deceased arriving, Bhupendra Singh enquired from Ram Sewak (P.W.2) if he had come to file his nomination papers against him.
Gajendra Singh (deceased) intervened and challengingly told the accused No. 1 that he should ask him.
Following the altercation that ensued, it is alleged that Bhupendra Singh fired the first shot on the deceased followed by shooting by his other associates and the deceased fell dead.
The party of Ram Sewak fled from the scene to escape the 857 attack.
It is further alleged that the body of the deceased was dragged by Gajendra Singh and his companions and carried by them on a tractor trolly belonging to A1 on which they had come, burnt it and ashes thrown in the river causing disappearance of the entire evidence.
The first Additional Judge acquitted all the charges on the ground that there are many infirmities in the prosecution case rendering its evidence unworthy of belief.
The state of Uttar Pradesh preferred appeal before the Lucknow Bench of the Allahabad High Court.
The High Court set aside the acquittal of Bhupendra Singh (A1) and convicted him for offence under section 302 I.P.C and awarded sentence of Rigorous Imprisonment for life , set aside the acquittal of A 4, 7, 8 in part, convicted them under section 201 of I.P.C. and sentenced each of them to seven years Rigorous Imprisonment thereunder.
Their acquittal under other charges was confirmed.
Appeal as against rest of the accused was dismissed altogether.
A1, 4, 7 and 8 have thus come in appeal against the judgement of the High Court.
In party allowing the appeal setting aside the conviction of appellants 2 to 4 (A1, 7, 8) under section 201 I.P. C. , and altering the conviction of appellant No. 1 (A1) from one under section 302 I.P. C. to one under section 307 I.P.C. and sentencing him to a term of 10 years rigorous imprisonment thereunder, this Court.
HELD: The evidence only established that the first appellant shot at the deceased but it is not known where the bullet hit and whether that injury caused by the said bullet shot caused the death.
Even in the case of shooting by a rifle unless the evidence shows the particular injury caused by the same and that injury is sufficient to cause death, the offence under section 302 I.P.C. could not be said to have been made out.
In the circumstances, therefore, we are unable to agree with the High Court that the first appellant is guilty of offence under section 302 IPC of causing the death of Gajendra Singh.
However we are of the view that while the first appellant shot at the deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death.
[863D E] We consider that the offence would come under the second limb or second part of section 307, IPC.
Though imprisonment for life also could be awarded as sentence for such an offence, on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment.
We alter the conviction under section 302, IPC to one under section 307 IPC and sentence him to a term of 10 years rigorous imprisonment.
[863G].
858 So far as the offence under section 201 IPC is concerned we have read the entire evidence carefully and the same does not impress as to bring home the offence of screening the evidence.
[863H,865H]
|
ivil Appeal No. 2992 of 1986.
From the Judgement and Order dated 22.7.1986 of the Madras High Court in W.P No 815 of 1985.
T.S. Krishnamurthy Iyer, Miss Purnima Bhat, Atul Sharma, A.V. Pillai and E.C. Agrawala for the Appellant.
P. Chidambaram, R. Ayyam Perumal, K.C. Dua, V. Krishnamurthy and R. Mohan for the Respondents.
The Judgement of the Court was delivered by S.C. AGRAWAL, J.
This appeal and the connected petitions for special leave to appeal are directed against the common judgment of the Division Bench of the Madras High Court dated July 22; 1986 whereby the judgement of the learned Single Judge has been set aside and the writ petitions filed by the appellant as well as the petitioners in the special leave petitions (referred to as 'the petitioners ' for the sake of convenience) have been dismissed.
The petitioners joined the Indian Army as Emergency Commissioned Officers (ECOs) in 1963 after the Chinese aggression.
They were discharged from the Army during the years 1967 to 1970.
After their discharge from the Army, they joined the Commercial Tax Service of the State of Tamil Nadu on being selected by the Tamil Nadu Public Service Commission through a competitive examination.
For rehabilitation of ECOs/Short Service Regular Commissioned Officers (SSRCOs) on their release from the Armed Forces, the Government of Tamil Nadu had by G.O. ms. No. 84 dated January 1, 1967, reserved 25% of the vacancies to be filled by direct recruitment during the four years 1967 1970 in respect of certain categories of posts in the State services.
By Order, G.O. Ms. No. 686 dated March 24, 1970, the Government of Tamil Nadu, in modification of the said order reserved 25% of the vacancies in non technical posts under various groups (both Gazetted and non Gazetted) to be filled by direct recruitment during five years commencing from 1969 for rehabilitation of ECOs/SSRCOs on their release from the Armed Forces.
The said order made provision for relaxation of age in case of such officers for 849 the purpose of recruitment to be reserved vacancies.
As regards seniority provision was made in paragraph 8 of the said order which prescribed as under: Inter se seniority among the candidates selected for the reserved vacancies will be determined by the Commission.
So far as the seniority in the department is concerned, the officers will take their seniority with reference to the order of preference indicated by the Commission and not with reference to the service with the "Armed Forces".
It appears that in respect of doctors who had joined the defence forces in connection with the emergency declared in 1962 and who were subsequently appointed in the cadre of Assistant Surgeons in the State of Tamil Nadu, the Government had issued an Order G.O. Ms. No. 2020 dated September 23, 1965, whereby seniority of such an incumbent was to be fixed by allotting them the year in which he would have been appointed to the post at his first possible attempt after the date of joining military service/training.
The Tamil Nadu Public Service Commission, in their letter dated February 6, 1973 addressed to the Chief Secretary to the Government of Tamil Nadu, made a reference to G.O. Ms No. 2020 Health dated September 23, 1965 with regard to fixation of seniority of candidates appointed to the post of Assistant Surgeon against vacancies reserved for ECOs/SSRCOs and expressed the view that allowing one of released persons like Doctors to enjoy the concession of their seniority being reckoned with reference to their date of appointment in the Army and at the same time denying such a concession to ECOs/SSRCOs selected to a non technical post will not be fair and such differential treatment will not also be in the interests of rehabilitating released Army personnel.
The Public Service Commission, therefore, commended that the principle followed in the matter of determining seniority in respect of released Army Doctor with reference to the date of their joining duty in the Armed Forces be extended to all services as recruitment to all the sevices are made on the basis of the competitive examinations comprising either of a written test or an oral test or a combination of both.
In the said letter, it was requested that orders in paragraph 8 of G.O.Ms. 686 may be suitably modified.
Keeping in view the aforesaid view expressed by the State Public Service Commission, the Government of Tamil Nadu passed an order G.O.Ms No. 25 dated November 16, 1976 whereby, in supersession of the earlier procedure prescribed for determining the seniority of the ECOs/SRRCOs recruited for non technical posts (both Gazetted and non Gazetted) against reserved 850 vacancies in G.O.Ms No. 686 dated March 24, 1970, the following procedure was prescribed: "(i) the seniority of the Emergency Commissioned/Short Service Regular Commissioned Officers recruited to the State Civil Services (both Ghazetted and Non Gazetted) between 24.3.1970 to 4.10.73 against reserved vacancies shall be fixed treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military service/training." After the issuance of the aforesaid order dated November 16, 1976, it was represented to the State Government that the concession granted to the ECOs/SSRCOs recruited to the Civil Services of the State instead of confirming it only to those recruited between 1970 and 1973.
The State Government decided to accede to that request and issued a fresh G.O.ms No. 734 dated June 15, 1977 whereby the orders in para 1(i) of the Order dated November 16, 1976 were thus modified: "1.
(i) The seniority of Emergency Commissioned Officers/Short Service Regular Commissioned Officers recruited to the non technical posts against reserved vacancies shall be fixed treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty.
In the case of candidates who joined Military service on or before 30th June of a year, the year of allotment would be the same; while in the case of those who joined the Military services on or after Ist July of a year, the year of allotment would be the next year.
" By the said order, it was also directed that the appointing authority should take steps to refix the seniority of the ECOs/SSRCOs recruited to the Civil Services with reference to instructions after issuing notices to all affected parties.
In accordance with the aforesaid directions, notices were issued to the other officers whose seniority was likely to be disturbed in view of the concession extended to ECOs/SRRCOs under Order dated June 15, 1977.
After taking into consideration the representations received in pursuance of the said notice 851 the State Government issued an Order G.O.Ms.
No. 233 dated March 3, 1980 whereby the orders dated November 16, 1976 and June 15, 1977 were cancelled.
In the said order, it was stated that: "The Government have carefully examined the above representations with reference to the legal position.
They consider that the vested seniority rights already accused to individuals by virtue of the rules in force cannot be divested by issuing fresh rules and giving retrospective effect to them.
The Government have therefore decided not to implement those orders by amending the special Rules governing these non technical posts.
" The petitioners as well as some other ECOs/SSRCOs filed writ petitions in the Madras High Court challenging the validity of the said order dated March 3, 1980.
The writ petitions were heard by a learned Single Judge of the High Court who allowed the same by his judgement dated December 4, 1984.
The learned Single Judge was of the view that under orders dated November 16, 1976 and June 15, 1977, which were passed on the recommendations of the Tamil Nadu public Service Commission, the petitioners had acquired certain rights in the matter of seniority and promotion and since the impugned Government order takes away the said rights of the petitioners, the petitioners should have been afforded an opportunity of a hearing before passing the impugned order which had not been done in this case.
Appeals were filed by the State Government as well as by private respondents against the said decision of the learned Single Judge.
The said appeals were decided by a Division Bench of the High Court by its judgment dated July 22, 1976, whereby it was held that the provision with regard to fixation of seniority in the cadre of Commercial Tax Officer (CTOs) in which the petitioners were appointed in governed by Rule 35 of the General Rules which are contained in Part II of the Tamil Nadu State and Subordinate Service Rules made under proviso to Article 309 of the Constitution and under the said rule, seniority is to be fixed on the basis of date of appointment to the service.
the learned Judges found that the said Rules had not been amended and in the absence of an amendment in rule 35, the orders with regard to fixation of seniority of ECOs/SSRCOs contained in Orders dated November 16, 1976 and June 15, 1977 were invalid and no rights could accure to the petitioners on the basis of the said orders which may require affording an opportunity to them.
With regard to Doctors and Engineers, the learned Judges have pointed out that suitable amendments had been made in the relevant statutory rules relating to both 852 the services.
The learned Judges, therefore, while setting aside the order of the learned Single Judge, dismissed the Writ Petitions of the petitioners but observed that the judgment would not prevent the State Government from amending the Rules made under Article 309 of the Constitution and if and when rules are made and if any persons are affected, they are entitled to challenge the said Rules.
Feeling aggrieved by the said decision of the division Bench of the High Court, the petitioners have approached this Court.
The first contention that has been urged by the learned counsel for the petitioners is that the concessions contained in the orders dated November 16, 1976 and June 15, 1977 were not invalid inasmuch as it was permissible for the State Government to issue administrative instructions with regard to determination of the seniority of the ECOs/SSRCOs and by the said orders which were issued on the recommendations of the State Public Service Commission the lacuna which was found in the existing rules was sought to be removed and that it w as permissible for the State Government to issue administrative instructions to remove such a lacuna.
In support of the said submission, reliance has been placed on the decisions of this Court in Sant Ram Sharma vs State of Rajasthan & Anr., ; ; Union of India vs H.R. Patankar 7 Ors., [[1985] 1 SCR 400 and State of Gujarat vs Akhilesh C. Bhargav & Ors. ; In the above mentioned decisions, it has been laid down that although the Government cannot amend the statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
in the instant case, it cannot be said that on the date of issue of orders dated November 16, 1976 and June 15, 1977, the rules were silent on the matter of fixation of seniority of persons recruited to the Tamil Nadu Commercial Tax Service.
Appointment to the said service was governed by General Rules contained in Part Ii of the Tamil Nadu State and Subordinate Rules.
Clauses (a) and (aa) of rule 35 of the said General Rules provide as under "(a) The seniority of a person in a service, class or category or grade shall unless he has been reduced to lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority, as the case may be, subject to the rule of reservation 853 where it applies.
The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.
(aa) The seniority of a person in a service, class or category or grade shall, where the normal method or recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the service, class, category or grade".
This shows that thee was an express provision in the statutory rules providing that seniority shall be fixed on the basis of the date of appointment.
By orders dated November 16, 1976 and June 15, 1977, the said principle for fixation of seniority contained in rule 35 was sought to be altered in respect of ECOs/SSRCOs and the seniority was sought to be fixed on the basis of a different criterion, namely, by treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty.
This was inconsistent with the principle for fixing the seniority contained in rule 35 of the General Rules and this could onlybe done by suitably amending the said rules and it could not be done by issuing administrative instructions.
The High Court has, in our opinion, rightly held that the directions contained in orders dated November 16, 1976 and June 15,1977 were invalid being contrary to the provisions contained in rule 35 of the General Rules.
Since the said orders were invalid, the petioners could not claim any right on the basis of the said orders and there was, therefore, no question of affording them an opportunity of a hearing before passing the order dated March 3, 1980.
In so far as appointments to medical and engineering services are concerned, the High Court has pointed out that suitable amendments were made in the relevant Services Rules relating to those services whereby the benefit of the Army Service was given in the matter of fixation of seniority of ECOs/SSRCOs.
who had joined the medical and engineering services.
No similar amendment has been made in the rules governing the non technical services, e.g., Commercial Tax Service to which the petitioners were appointed.
The learned counsel for the petitioners have next contended that the petitioners have been subjected to arbitrary discrimination i n the matter of fixation of their seniority inasmuch as ECOs/SSRCOs who have joined the medical and engineering service of the Government of 854 Tamil Nadu have been given the benefit of their service in the Army in the matter of fixation of seniority whereas similar benefit has been denied to the petitioners even though the petitioners as well as other ECOs/SSRCOs who have joined medical and engineering service were all similarly situate.
In this connection, reliance has been placed on the decision of this Court in Union of India & Ors.
vs Dr. section Krishna Murthy & Ors. etc., [1989] Supp.
(1) SR 275.
This contention, in our view, is misconceived.
ECOs/SSRCOs who have joined medical and engineering services of the State of Tamil Nadu were technically qualified in their fields and they had worked in the Army in the same field in which they are now employed in the State service.
The benefit of the experience gained by them during the period of their service in the Army on the posts viz. medical/engineering held by them was available to the State they joined the medical/engineering services of the State of Tamil Nadu.
The same cannot be said for the petitioners because the nature of the duties discharged by them in the Army were different from the duties they are now required to perform at CTOs in the State service.
It cannot, therefore, be said that the ECOs/SSRCOs who have joined the medical and engineering services of the State of Tamil Nadu and the petitioners who have joined the Commercial Tax Department of the State are persons similarly situate in the matter of determination of seniority and for counting the earlier Army service for that purpose.
In Union of India vs Dr. section Krishna Murthy, case (supra), the ECOs/SSRCOs on discharge from the Army had joined the Indian Forest Service and the Indian Police Service and provision was made in the Regulation of Seniority Rules governing these Services whereby it w as provided that year of allotment of an officer appointed to the said Service shall be deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of their commission where there was only post commission training.
The validity of the said rules was challenged by other direct recruits to those Services on the ground that the ECOs/SSRCOs could not be classified into a separate category.
The said contention was rejected by this Court and it was held that ECOs/SSRCOs formed a definite class, distinct from other officers of the Indian Forest Service and Indian Police Service, and that the said classification was founded on an intelligible differentia which distinguishes them from other officers and that the classification has rational relation to the objects sought to be achieved by the Rules inasmuch as it has been made for the purpose of compensating the ECOs/SSRCOs for the lost opportunity because of their joining the Army service.
855 The said decision may have a bearing in the event of rules being framed making provision for giving the benefit of Army service in the matter of fixation of seniority of the petitioners and other persons who have joined the Commercial Tax Service of the State of Tamil Nadu.
Since there is no such rule, the petitioners cannot derive any assistance from this decision.
In the circumstances, we find no ground to interfere with the decision of the High Court.
The appeal as well as the special leave petitions are, therefore, dismissed but with no orders as to costs.
|
The appellant/petitioners joined the Army as Emergency Commissioned Officers in 1963 and were discharged during the year 1967 to 1970.
After their discharge they joined the Commercial Tax Service under the Respondent State on selection by the State Public Service Commission.
It was provided under R.35 of the Tamil Nadu State and Subordinate Service Rules that their seniority in the department would be fixed in the order of preference indicated by the Service Commission and not with reference to the service in the Armed Forces.
However, in respect of similar candidates who were appointed as Assistant Surgeons, the government order provided that their seniority would be fixed by allotting them the year in which they would have been appointed to the post at the first possible attempt after the date of joining military service/training.
Thus, the concession of seniority reckoned with reference to date of appointment in the Army, which has been extended to Asstt.
Surgeons was denied to similar candidates selected to other services categorised as non technical.
On a suggestion made by the Public Service Commission, the 846 Respondent State passed orders extending the benefit to the other services also.
The Respondent State further extended the benefit of fixation of seniority to all such candidates irrespective of their year of recruitment.
The appointing authorities were directed to take steps to refix the seniority of such officials after issuing notice to all the affected parties.
Accordingly notices were issued, and in response thereof representations were received by the Respondent State, which, after due to consideration decided not to implement the orders extending the benefits to other candidates in the non technical category.
Aggrieved by the said order issued on 3.8.1980 the affected persons filed Writ Petitions before the High Court.
A Single Judge allowed the Writ Petitions holding that under orders dated November 16, 1976 and June 15, 1977, which were passed on the recommendations of the Public Service Commission,, the petitioners had acquired certain rights in the matter of seniority and promotion and since the Government order dated 3.31980 took away the said right of the petitioners, they should have been afforded an opportunity of hearing before passing the said order.
On appeal, the Division Bench set aside the judgement of the Single Judge.
In the appeal and special leave petitions preferred against the said judgment it was contended that it was permissible for the State Government to issue administrative instructions with regard to determination of the seniority and to remove the lacuna which was found in the existing rules, viz. discrimination between the Medical/Engineering service and other services.
Dismissing the matters, this Court, HELD: 1.
Although the Government cannot amend the statutory rules by Administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
In the instant case, it cannot be said that on the date of issue of orders dated November 16, 1976 and June 15, 1977, the rules were silent on the matter of fixation of seniority of persons recruited to the Tamil Nadu Commercial Tax Service.
[852E F] (Sant Ram Sharma) vs (State of Rajasthan & Anr.,) ; of India) vs (H.R. Patankar & Ors.,) [1985] 1 SCR 400 and (State of Gujarat) vs (Akhilesh C. Bhargav & Ors.) ; referred to.
847 2.
There was an express provision in the statutory rules viz. Rule 35 of the Tamil Nadu state and Subordinate Service Rules providing that seniority shall be fixed on the basis of the date of appointment.
By orders dated November 16, 1976 and June 15, 1977, the said principle for fixation of seniority contained in rule 35 was sought to be altered in respect of Emergency Commissioned Officers/Short Service Regular Commissioned Officers and the seniority was sought to be fixed on the basis of a different criterion, namely, by treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty.
This was inconsistent with the principle for fixing the seniority contained in rule 35 and this could only be done by suitably amending the said rules not by issuing administrative instructions.
The directions contained in orders dated November 16, 1976 and June 15, 1977 were invalid being contrary to the provisions contained in Rule 35.
Since the said orders were invalid the appellant petitioners could not claim any right on the basis of the said orders and there was, therefore, no question of affording them an opportunity of a hearing before passing the order dated March 3, 1980.
In so far as appointments to Medical and Engineering Services are concerned suitable amendments were made in the relevant Service Rules relating to those services whereby the benefit of the Army service was given in the matter of fixation of seniority.
No similar amendment has been made in the rules governing the non technical services e.g., Commercial Tax Service to which the appellant petitioners were appointed.
[853C G] 3.
Emergency Commissioned Officers/Short Service Regular Commissioned Officers who have joined Medical and Engineering Services of the Respondent State were technically qualified in their fields and they had worked in the Army in the same field in which they are now employed in the State service.
The benefit of the experience gained by them during the period of their service in the Army on the post viz. Medical/Engineering held by them was a vailable to the State when they joined the Medical/Engineering Services of the Respondent State.
The nature of the duties discharged by the appellant/petitioners in the Army were different from the duties they are now required to perform as Commercial Tax Officers in the State service.
It cannot, therefore, be said that the Emergency Commissioned officers/Short Service Regular Commissioned Officers who have joined the medical and Engineering Service of the State and the appellant/petitioners who have joined the Commercial Tax Department of the State are persons similarly situated in the matter of determination of seniority and for counting their earlier Army Service for that purpose.
[854B D] 848 Union of India & Ors. etc.
vs Dr. section Krishna Murthy & Ors. etc., [1989] Supp. 1 SCR 275, distinguished.
|
ON:Criminal Appeal No. 680 of 1987.
From the Judgement and Order dated 16.8.1984 of the Andhra Pradesh High Court in Crl.
A. No. 604 of 1982.
N. Santosh Hegde, A.D.N. Rao and A, Subha Rao for the Appellants.
G. Prabhakar for the Respondent.
The Judgement of the Court was delivered by 877 V.RAMASWAMI, J.
The appellants along 11 others were tried for causing the murder of on Appikatla Tataiah, and for causing injuries on Jarugu Rama Koteshwararao (PW2) on 24th June, 1981 near `Manchineeti Cheruyu '(fresh water tank) at or about 8.00 P.M. in Machavaram Village.
The learned Sessions Judge, Krishna Division Machilipatnam by his Judgment dated 16.7.1982 acquitted A 3, A 4, A 6 to A 10, A 12 and A 15 of all the charges.
He convicted Kurakula Nagamelleswarao (A 1), Jarugu Kotaiah (A 2), Appikatla Krishnamurthy (A 5) and Appikatla Nagulu (A 11) under section 148, Indian Penal Code and sentenced each of them to undergo two years rigorous imprisonment.
A 1 was further convicted under section 302, IPC and sentenced to imprisonment for life.
A 2 was convicted under section 302 read with section 34, IPC and sentenced to imprisonment for life.
A 5 and A 11 were convicted under section 302 read with section 149, IPC and each of them were sentenced to undergo imprisonment of life.
Regarding the attack on PW 2 jarugu Rama Koteshwararao the learned Sessions Judge convicted A 1 and A 2 under section 326, IPC read with section 149 and sentenced each of them to undergo rigorous imprisonment for four years.
The learned Judge further convicted A 5 and A 11 under section 324, IPC for causing simple hurt to PW 2 and sentenced each one of them to undergo rigorous imprisonment for two years.
A 1 and A 2 were also convicted under section 324 read with section 149, IPC and each of them were sentenced to two years rigorous imprisonment.
The sentences awarded against each accused under various ground were ordered to run concurrently.
The convicted accused preferred Criminal Appeal No. 604 of 1982 and the State appealed against the acquittal of the rest of the accused in Criminal Appeal No. 630 of 1983.
At the time of admission of appeal, however, the State appeal was dismissed as against A 9, A 10, A 12, A 13, A 14, and A 15 and it was admitted only as against acquittal of A 3, A 4 and A 6 to A 8.
The High Court confirmed the conviction and sentence of A 1, A 2, A 5 and A 11 under section 148, IPC.
However, it alterted the conviction of A 1 and A 2 under section 302, IPC and Section 302 read with section 34 respectively into one under section 148 and section 302 read with section 149 and the sentence awarded thereunder were also confirmed.
The High Court also confirmed the conviction and sentences on the accused under sections 326 and 324 read with section 149 and sections 324 read with 878 section 149, IPC.
The sentences were directed to run concurrently.
the lerned Judges of the High Court dismissed the appeal preferred by the State in respect of acquittal of the other accused.
In this appeal Sh.
Santosh Hedge, Senior Advocate appearing for the accused appellants did not canvass the conviction of the four appellants, namely, A 1, A 2, A 5 and A 11 under section 324 and 326, IPC and section 324 read with section 149, IPC and section 326 read with section 149, IPC in relation to the attack on PW 2 but without prejudice to his contention that on the facts section 149, IPC could not have been invoked in relation to the offence under section 302,IPC.
This stand was taken on the basis that the appellants had already served or had almost finished serving the four year terms which was awarded for those offences.
The conviction and sentence under section 148 was also not canvassed for the same reason without prejudice the above said contention.
He confined his arguments against the convictions and sentences of A 1, A 2, A 5 and A 11 under section 302 read with section 149, IPC.
The argument of the learned counsel for the appellant was that in the absence of specific finding to the effect and apart from the four appellants the prosecution has proved the involvement of other persons, section 149 IPC cannot be used for convicting for four appellants under section 302.
In this connection, he also relied on the decisions of this Court in Amar Singh V. State of Punjab, [1987] 1SCC 679 and Maina Singh V. State of Punjab, [1976]3SCR651.
So far this part of the case is concerned in the present case the High Court observed: "The lower court has convicted A 1 under section 302 of the Indian Panal Code for attacking the deceased.
A 2, was convicted under sections 149, 302 r.w. section 34, 324 r.w. section 149 and 326 I.P.C. for attacking the deceased.
A 5 and A 11 were convicted under sections 148, 302 r.w. section 149, 324 and 326 r.w. section 149 IPC.
As already observed the facts and circumstances undoubtedly show that there was an unlawful assembly consisting of more than five persons and the common object of the unlawful assembly was to attack and kill the deceased and attack PW 2.
As already observed only such of accused whose presence and participation is established can safely be held to be the members of the unlawful assembly.
To arrive at such a conclusion we have indicated that the evidence of PW 2 to extent consisting with the earlier versions of exhibit P 2 can 879 safely be accepted to be the basis and if corroboration is necessary the same can be found in the evidence of PWs 1, 3 and 4P. Ws. 2 's evidence is subjected to scrutiny in the light of the contents in exhibit P 2.
The consistent version regarding the presence and participation by A 1,A 2, A 5 and A 11 can safely be accepted and they can be held to be the members of the unlawful assembly along with some others unidentified persons.
The common object of the unlawful assembly along with some others unidentified persons.
The common object of the unlawful assembly was to commit murder of the deceased.
All of them can be conviction under section 302 read with section 149 IPC in as much as there can be no doubt whatsoever that the object of such an unlawful assembly of which A 1, A 2, A 5 and A 11 are members is to attack the deceased and PW 2.
In this context it must also be remembered that PW 2 who received the serious injuries, would be the last person to leave out the real assailants and implicate the innocent persons.".
(Emphasis supplied) We are of the view that there is some confusion in the statement of the High Court.
The charges under section 324 and section 326 read with section 149 and section 326 and section 324 read with section 149 are in relation to the injuries inflicted on PW 2.
So far as injuries inflicted on PW 2 is concerned as already stated the conviction and sentence in regard to the same are not canvassed in this appeal.
So far as the attack on the deceased is concerned P 1 the statement of PW 1 given to the village Munsif on 24.6.1981 immediately after the occurence stated that: ". surrounded my husband and my elder brother armed with axes, curved knives, and spears.
Then Kurakula Nagamalleswararao hacked my elder brother with curved knife (Yerukala Kathi) on the left shoulder.
Jargugu Kotiah hacked my elder brother with an axe on the left shoulder.
Appikatla Nagulu beat my elder brother on the head with stick portion of the spear.
I raised hue and cry loudly that they are killing my husband and my elder brother.
On hearing my cries Ummadisetti Pooraniah and my sister in law Srikrishna came there.
the above fifteen persons caused injuries to my husband by beating and hacking with axes, spears and curved knives (Yerukala Kathi)which were in their hand.
My husband succumbed to the knife injuries.
" 880 It may be seen from this report that there is a bald statement that fifteen persons caused injuries to her husband (deceased) by beating and hacking with axes, spears and curved knives (Yerukala Kathi) which were in their hands and her husband succumbed to the knife injuries.
It did not attribute any overt act to A 1, A 2, A 5 and A 11, who are the appellants in this case.
The PW2 gave the statement exhibit P 2 dated 25.6.1981 recorded by the Munsiff Magistrate, Avamigadda as a dying declaration which was later taken as a statement under section 157 Code of Criminal Procedure.
In this so far as the injuries inflicted on the deceased are concerned he had merely stated: "The aforesaid four persons and the other eleven persons, beat and hacked my younger sisters ' husband Appikatla Tataiah and felled him down." The charges framed against the accused appellants also stated: "That you, accused Np.
1 to 15, on the night of 24th day of June, 1981, at about 8.P.M. near the Manchineeti Cheruvu ' in Machavaram Village, Divi taluk, were members of an unlawful assembly and did, in prosecution of the common object of which viz. in killing Appikatla Tataiah, S/o Chittonna alias Chinna Ammanna an d Jarugu Rama Koteswara Rao, S/o Mangaiah of Machavaram village. " Thus the specific prosecution case was that accused 1 to 15 attacked the deceased and no specific overt act was attributed to any of the accused.
It is true that PW 1 in her evidence stated that A 1 hacked the deceased on the left side of neck with Yerukala Kathi and the evidence of doctor PW 8 showed that this is injury No. 2 which proves fatal by itself.
But in the light of the first information report P 1 and the dying declaration exhibit P 2 dated 25.6.1981 of P.W. 2 recorded by the Munsiff Magistrate which was later on treated as statement under section 57 of the Criminal Procedure Code which did not attribute any specific overt act to any of the appellant accused in this case, this case was not accepted by the High Court.
It is because of this reason the High Court did not accept the conviction of the appellants 1 and 2, namely, accused 1 and 2 under section 302 and section 302 and section 302 read with section 34, accused 1 and 2 under section 302 and section 302 read with section 34, IPC and altered the conviction into one under section 302 read with the section 149, IPC.
The learned counsel for the appellant also contended that the evidence of PW 1 apart from the fact it was not accepted by the High 881 Court in so far as it related to the specific overt acts of A 1, 2, 5 and 11 are concerned are also not acceptable as they are full of infirmities and improbabilities and also by reason of the possibility of improving the case.
He had pointed out that though PW 2 and deceased were said to have gone to the Manchineeti Cheruyu (fresh water tank) to verify whether the paddy bags kept by them for soaking were in tact, paddy bags were not found the investigating officer or anybody and they were not recovered.
the learned counsel also pointed out, the story that PWs 1 and 3 and had gone that side for calls of nature are also not believable as the place were ladies ease was on the opposite direction and not in the direction of the fresh water.
The houses of the deceased and PW 2 and that of Pw 4 were about 150 yards away from the scene of occurence and the occurrence is stated to have taken place at 8.00 P.M.
These ladies ran to the scene of occurrence on hearing the cries of the deceased and PW 2.
It was also pointed out that though they stated that when they (ladies) went to answer the calls of nature they had taken along with them chambus or lotas with water, and those chambus or lotas were not recovered.
In her evidence PW 1 stated that when she found her husband lying dead with number of injuries and blood everywhere she fell over her husband and wept but none of her blood stained clothes were recovered.
Though they had stated that when she found her husband PW 2 injured she carried him but her blood stained clothes were also not recovered.
Though they had stated before going to the village Munsiff for giving the complaint and after taking PW2 to the house they have changed the clothing their evidence clearly throw a doubt as to the presence at the time of occurrence.
It should be kept in mind that PW1 is the wife of the deceased PW3.
And thus they are all closely related and the possibility of an exaggeration or of improving in their evidence cannot be ruled out.
It may also be pointed out that these witnesses stated that there was electric lamp post and there was no question of any electric light being on.
There is ample evidence of rivalry between the parties also.
In these circumstances their presence at the time of occurrence is doubtful and it is also not possible to believe the evidence of PWs 1,2,3 and 4 in respect overt acts attributed to the four appellants herein.
In fact, as already stated the High Court was not willing to accept their evidence in this regard and that is why the conviction was made under section 302 read with section 149, IPC.
882 However, the learned Judges over looked that since the accused who are are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences, section 149 cannot be invoked for convicting the four appellants herein.
The learned Judges were not correct in stating that A1, A2, A5 and A11 "can be held to be the members of the unlawful assembly along with some others unidentified persons ' on the facts and circumstances of this case.
The charge was not that accused 1, 2, 5 and 11 "and others ' or "and other unidentified persons" formed into an unlawful assembly but it is that "you accused 1 to 15" who formed into an unlawful assembly.
It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime.
When the 11 other accused were acquitted it means that their involvement in the offence had not been proved.
It would not also be permisible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object.
In Maina Singh 's case (supra) the appellant in that case and four others were charged with offences under sections 302/149, IPC, the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp edged weapon.
The Trail Court acquitted the four accused and convicted the appellant under section 302 read with section 34.
The High Court dismissed the appeal for the State against the acquittal as also the appellants appeal against the conviction.
In the appeal before the Supreme Court it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of other co accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence which he might have committed in his individual capacity.
The head note in the report brings the ratio of the judgement correctly and that may be quoted: "In a given case even if the charge disclosed only the named persons as co accused and the prosecution witness confined their testimony to them, it would be permissible to conclude that others, named or unnamed, acted cojointly with one of the charged accused if there was other 883 evidence to lead to that conclusion, but not otherwise.
The charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co accused, and with no other person.
The trial in fact went on the basis throughout.
There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person.
So when the other four co accused had been given the benefit of doubt and acquitted, it would not be permissible to take the view that there must have been some other person alongwith with the appellant in causing injuries to the deceased.
the appellant would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.".
The facts in the Amar Singh 's case (supra) in short were that seven accused were charged for murder under section 302 read with section 149 IPC.
Two out of the seven accused were acquitted by the Trial Court and on appeal the High Court acquitted one more accused.
However, the High Court convicted four of the accused under section 302 read with section 149 IPC and sentenced them for life imprisonment.
The four convicted accused appealed to this Court and it was contended on their behalf that after the acquittal for three accused persons out of seven, the appellants who were remaining four cannot be held to have formed an unlawful assembly within the meaning of Section 141, IPC and accordingly the charge under section 149 was not maintainable.
Accepting this contention this Court observed: "As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141 IPC.
It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime.
Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under section 148 or section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an `unlawful assembly ' is that such assembly must be of five or more persons, as required under section 141 IPC.
In our opinion, the convictions of the appellants under sections 148 and 149 IPC cannot be sustained.
" 884 The ratio of these judgements are also applicable to the facts and circumstnces of this case.
In the result the appeal of the appellants against the conviction and sentence under section 302 read with section 149, IPC is allowed and the same is set aside.
We, however, confirm the conviction and sentence of the appellants under the other charges.
R.N.J. Appeal allowed.
885 GURMUKH SINGH V AMAR SINGH MARCH 15, 1991 [N.M.KASLIWAL AND K. RAMASWAMY, JJ.] : Section 23 Contract opposed to public policy What is Agreement to purchase property in public auction and thereafter convey half the property Specific performance of Whether enforceable.
The respondent field a suit for specific performance of an agreement of sale of land or refund of the money paid to him contending that he and the appellant had contracted that the appellant would participate, on their behalf in public aution to purchase the evacuee property and the appellant would convey half the property purchased thereat and in furtherance of that he had contributed his share, but the appellant who became the highest bidder and got a sale certificate issued by the custodian of the evacuee property had not performed his part of the contract.
The appellant resisted the suit, and denied the execution of the agreement.
He also pleaded that the contract was illegal and void, being opposed to public policy, and that the relief of specific performance being discretionary could not be granted in favour of the respondent.
The trial court decreed the suit.
On appeal by the appellant, both the first appellate court and the High Court confirmed the decree.
Hence the appeal, by special leave.
On behalf of the appellant it was contended that the agreement was opposed to public policy since it was to knock out the public property on a minimum price and, therefore, void under section 23 of the contract Act, 1872.
Dismissing the appeal, this Court.
, HELD: 1.1 Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provision of any law; or is fraudulent; or involved or implied injury to 886 the persons or property of another; or the court regards it as immoral or opposed to public policy.
In each of these cases, the consideration or object of an agreement is unlawful.
Thus, every agreement of the consideration or object of which is unlawful is void.
[888F G] 1.2 The word "object" would mean the purpose and design which is the object of the contracts; it is opposed to public policy if it tends to defeat any provision of law or purpose of law, and it becomes unlawful and void under section 23 of the Contract Act.
Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it.
Public policy imposes certain limitation upon freedom of contract.
Certain objects of contract are forbidden or discouraged by law; though all other requisites for the formation of a contract are complied with, yet if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it.
Most cases of illegality are of this sort; the illegality lie in the purpose which one or both parties have in mind.
But in some instances the law strikes at the agreement itself, and the contract is then by its very nature illegal.
[888G H,889A B] 1.3 The public policy is not static.
It is variable with the changing times and the needs for the society.
The march of law must match with the fact situation.
A contract tending to injure public interest or public welfare or fraudulent to defeat the right of the third parties is void under section 23 of the Contract Act.
[892F] 1.4 The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose.
If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out a low price it would defeat the above economic interest of the debtor or public welfare.
Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23.
[ 890E F] In the instant case, the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the evacuee property.
There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price.
Thus, the object of the agreement is not opposed to public policy, and therefore, it is not void under section 23 of the Contract Act.
Therefore the agreement between the appellant and the 887 respondent is lawful contract.
The courts below committed no error of law warranting interference.[892H,893A B] Rattan Chand Hira Chand vs Askar Nawaj Jung, J.T. 1991 1SC 433 and Cheerulal Prakash vs Mabadeodas Maiyua & Ors., [1959] (Suppl.) 2 SCR 406, referred to.
Scott vs Brown.
Deorning Mc Nab & Co., [1892] 2 K.B. 724 and Mohamed Meerta vs S.V. Raghunadha Gopalar, 27 Indian Appeals 17, referred to.
Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd. & Ors.,[1974] 3 SRC 678; Central Inland Water Transport Corpn.
Ltd. & Anr vs Brojo Nath Ganguli & Anr., {1986] 2 SCR 278 and Delhi Transport Corporation vs D.T.C. Mazdoor Congress & Ors., A.I.R. 1991 SC 190, inapplicable.
Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohana Rao and Anr., ; Ram Lal Misra vs Rajendra Nath Sanyal, A.I.R. (1933) Oudh P. 124 at 127; Nand Singh @ Ghuddha vs Emperor, A.I.R. (30) 1943 Lahore 101; Hutchegowda vs H.M. Basaviah, A.I.R. ; Ratanchand Hirachand vs Askar Nawaz Jung & Ors., A.I.R. 1976 A.P. 112; Mo. Issac V. Sreeramula, A.I.R. Mad.
289= [1946] 1 Madras Law journal, 187; Ramalingiah vs Subbarami Reddi A.I.R. 1951 Mad.
390; Mohafazul Rahim vs Babulal, A.I.R. 1949 Nagpur 113 and Lachhman Das & Ors v Hakim Sita Ram & Ors.
A.I.R. 1975 Delhi 159, referred to.
Chitty 's contract, 26th Edn., Vol.
I Paragraph 1134, P. 686 and Halsbury 's Laws of England.
Fourth Edition, Vol.
9 Paragraph 392 at p. 266 and paragraph 746 at 383, referred to.
& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1335 of 1977.
From the Judgement and Order dated 7.3.1977 of the Punjab & Haryana High Court in R.S.A. No. 1162 of 1966.
J.M. Khanna and Mr. I.B. Gaur for the Appellant.
Dhruv Mehta, Aman Vachhar, S.K. Mehta, Arvind Verma and Romesh Chand for the Respondent.
888 The Judgement of the Court was delivered by K. RAMASWAMY, J.
The unsuccessful defendant/appellant resisted the suit of the respondent for specific performance of the agreement of sale of 27 Bhigas and 2 Biswas of the land situated in Chakkar Karman Village.
According to the respondent he and the appellant contracted that the appellant would participate on their behalf in a public auction to purchase the evacuee property.
he contributed his share.
The appellant agreed to convey half the property purchased at the auction.
The appellant became the highest bidder for a sum of Rs. 5,000 and he contributed his share and the sale was confirmed on March 11, 1964 and a sale certificate was issued by the custodian of he evacuee property but the appellant had not performed his part of the contract.
Accordingly he laid the suit for specific performance or refund the amount advanced by him.
The suit was resisted by the appellant denying the execution of the agreement and also pleaded that the contract is illegal and void being opposed to public policy.
The relief of specific performance being discretionary cannot be granted in favour of the respondent.
The Trial Court decreed the suit; on appeal and on further second appeal the District Court and the High Court confirmed the same.
Thus this appeal on social leave under article 136 of the Constitution.
The contention neatly argued by Shri Khanna, the learned counsel for the appellant, is that the agreement is opposed to public policy and, therefore, it is void under section 23 of the Contract Act, 1872.
According to him the agreement was to knock out the public property on a minimum price and that, therefore, the object of the agreement is opposed to public policy and is hit by section 23.
We found no force in the contention .
Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law; or is of such of nature that, if permitted, it would defeat the provision of any law; or is fraudulent; or involved or implied injury to the persons or property of another; or the court regard it as immoral or opposed to public policy.
In each of these cases, the consideration or object of an agreement is a said to be unlawful.
Every agreement of which the object or consideration is unlawful is void.
The word object would mean the purpose and design which is the object of the contract, if is opposed to public policy which tends to defeat any provision of law or purpose of law, it becomes unlawful and thereby it is void under section 23 of the Contract Act.
Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it.
Public policy imposes certain limitations upon free 889 dom of contract.
Certain objects of contract are forbidden or discouraged by law; though all other requisites for the formation of a contract are complied with, year if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it.
Most cases of illegality are of this sort: the illegality lies in the purpose which one or both parties have in mind.
But in some instances the law strikes at the agreement itself, and the contract is then by its very nature illegal.
Whenever a plea of illegality or against public policy is raised as a defence to a contractual claim, the test to be applied is: Does public policy require that this claimant, in the circumstances which have occurred, should be refused relief of which he would otherwise have been entitled with respect to all or part of his claim .
In addition, once the court finds that the contract is illegal and unenfocreable, a second question should be posed which would also lead to greater clarity: do the facts justify the granting of some consequential relief (other than enforcement of the contract) to either of the parties to the contract.
In Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohan Rao and Anr., , Subba Rao J., as he then was, while considering the word "object" in section 23 of the Contract Act in the context of enforceability of the debt secured to celebrate the marriage of the minor which was prohibited by the Child Marriage Restraint Act, held that the word "object" in section 23 meant "purpose" or "design" of the contract.
The purpose of borrowing was unlawful as it was opposed to the public policy of celebrating the marriage of a minor in violation of the statutory provisions, and therefore, the promissory note was held to be unenforcable.
An agreement between A & B to purchase property at an auction sale jointly and not to bid against each other at the auction is perfectly lawful, though the object may be to avoid competition between the two.
But if there is an agreement between all the competing bidders at the auction sale, be it of the court sale or revenue sale, or sale by the government of its property or privilege and formed a ring to peg down the price and to purchase the property at knock out price, the purpose or design of the agreement is to defraud the third party, namely , the debtor or Govt.
whose property is sold out at the court auction or revenue sale, or public welfare.
The object or consideration of the contract, oral or written, to share such property is unlawful.
There is also implied "injury to the debtor" within the meaning of section 23.
Thereby the contract was fraudulent.
The contract thus is also opposed to public policy and is void.
Take for instance four persons participated at an aution sale; pursuant to their previous agreement, they made pretext of partici 890 pation in the auction; bid upto an agreed price though the real value of the property is much more than what they had offered for.
Here the design or object of their forming a ring is to knock out the property for a song to defraud the debtor or public.
What is the object of the public policy in this regard ? The scope of public policy was classified into five groups in paragraph 1134 at p. 686 of Chitty 's on Contract , 26th Edn., Vol.
I, thus: "Objects which on ground of public policy invalidate contracts may, for convenience, be generally classified into five groups; first, objects which are illegal by common law or by legislation; secondly, objects injurious to good government either in the field of domestic or foreign affairs; thirdly objects which interfere with the proper working of the machinery of justice; fourthly, objects injurious to marriage and morality and fifthly, objects economically against the public interest.
" In Halsbury 's Laws of England , Fourth Edition, Vol. 9, in paragraph 392 at p. 266 it is stated that an agreement which tends to be injurious to the public or against the public good is invalidated on the ground of public policy.
"The question whether a particular agreement is contrary to public policy is a question of law, to be determined like any other by the proper application of prior decisions" The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose.
If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out at a low price would defeat the above economic interest of the debtor or public welfare.
Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23 .
In Ram Lal Misra vs Rajendra Nath Sanyal, A.I.R. (1933) Oudh p. 124 at 127 the finding was that the agreement was not merely of an honest combination between two bidders to purchase the property at an advantageous price but goes further by resorting to secret artifice for the purpose of defrauding a third person, namely, the rival decreeholder.
Accordingly, it was held that the agreement was fraudulent and that, therefore, void under section 23 of the contract Act; Same is the view expressed by the Lahore High Court in Nand Singh @ Ghudda vs Emperor, A.I.R. 30 1943 Lahore 101 and in Hutchegowda vs H.M. Basaviah, A.I.R. (1954)Mysore 29.
In Rattan Chand Hira Chand vs Askar Nawaj Jung,J.T. this Court held that an agreement to influence authorities to obtain favourable verdict was held to 891 be opposed to public policy and void under section 23 and approved the decision of the A.P. High Court in Ratanchand Hirachand vs Askar Nawaz Jung & Ors.
A.I.R. 1976 A.P. 112.
An agreement to rig the market for share has been held to be fraudulent and unenforceable in Scott vs Drown, Deorning McNab & Co. [1872]2K.B. 724.
In Halsbury 's Laws of England Fourth Edition, Vol. 2, paragraph 746 at p. 383, it was stated that where good were purchased at an auction by a person who had entered into an agreement with another or others that the other or the others, or some of them, shall abstain from bidding for the goods, and he or the other party, or one of the other parties, to the agreement is a dealer, the seller may avoid the contract under which the goods are purchased.
Where a contract is avoided by virtue of this provision, then if the purchaser has obtained possession of the goods and restitution thereof is not made, the persons who were parties to the agreement are jointly or severally liable to make good to the vendor any loss he sustained by reason of the operation of the agreement.
In Md. Issac vs Sreeramulu, A.I.R.1946 Mad.
289=(1946) 1 Madras Lw Journal, 187 the Madras High court held that an agreement between two bidders not to bid against each other at an auction is not illegal and is not opposed to public policy.
The same was followed in Ramalingiah vs Subbartami Reddi, A.I.R. 1951 Mad 390.
In Mohafazul Robim vs Babulal, A.I.R. 1949 Nagpur 113 the Nagpur High Court also held that persons agreeing not to bid against each other is not opposed to public policy.
The Division Bench of Delhi High Court in Lachman Das & Ors.
vs Hakim Sita Ram & Ors.
A.I.R. 1975 Delhi 159 had to consider that an agreement entered into by the parties not to bid at the auction against each other is not opposed to public policy, and therefore, it is not avoid.
While upholding the agreement it was also held that where agreements are likely to prevent the property put up for sale in not realising its fair value and to dump the sale would certainly be against public good and, therefore, is void being opposed to public policy.
In Cheerulal Prakash v Madadeodas maiyua & Ors., [1959] (suppl.) 2 SCR 406 this court held that though a wagering contract was void and unenforceable under section 30 of the ContractAct, it was not forbidden by law and agreement collateral to such a contract was not unlawful within the meaning of section 23 of the Contract Act.
A partnership with the object of carrying on wagering transaction was not therefore, hit by section 23.
In Mohomed Meerta vs S.V. Raghunadha Gopalar, 27 Indian Appeals, 17 the sale was impugned, on one of the grounds that the agreement was made for the benefit of the Papanand Zamidar and 892 the appellant, intended to sell the property back to the former when he should be in a position to repurchase it and both of them had combined to dissuade persons from bidding, and did in fact dissuade them.
Thereby they purchased the property for lesser price than the real value.
The execution was set aside.
On appeal, the High Court did not agree with the finding that the appellant and the Jainilabdin and the Papanand Zamindar did combine to dissuade the persons from bidding but fount that the appellant played fraud on the court by suppressing the contract as being a decree holder obtained leave of the count and bid in the auction.
Therefore, the sale was void on that ground.
On further appeal the judicial committee found that the ground on which the High Court set aside the sale was not pleaded, nor an opportunity given to the appellant.
Therefore, for the first time that ground cannot be taken before the High Court and having disagree with the executing court that there was an agreement to dissuade third party to participate in the bid, the sale cannot be set aside on the new ground.
The Privy Council confirmed the sale.
On those facts the ratio is of no assistance to the appellant since there is no agreement between the appellant and the respondent to dissuade third party to participate in the bid.
The ratio in Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd. & Ors. ; is of no assistance to the appellant.
Therein the executing court, on the previous occasion, with a view to secure better price did not confirm the sale, the conduct of the second sale, therefore, was held not to be vitiated by any material irregularity.
The general principles of public policy discussed by this Court in Central Inland Water Transport Corpn.
Ltd. & Anr.
vs Brojo Nath Ganguli & Anr., [1986] 2SCR 278 and one of us (K.R.S., J.) in Delhi Transport Corporation vs D.T.C. Mazdoor Congerss & Ors.
A.I.R. 1991 SC 190 are of no assistance on the facts in this case.
The public policy is not static.
It is variable with the changing times and the needs of the society.
The March of law must match with the fact situation.
A contract tending to injure public interest or public welfare or fraudulent to defeat the rights of the third parties are void under section 23 of the Contract Act.
From the record it is clear that there were as many as six bidders who participated in the auction, the upset price was fixed at Rs. 1,000.
The auction was started with the bid at Rs. 1,000 and ultimately at 20th knock the highest bid of the respondent was at Rs. 5,000.
Thus, the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the 893 evacuee property.
There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price.
Thus, the object of the agreement is not opposed to public policy, and therefore, it is not void under section 23 of the Contract Act.
Thus, on the facts of this case we have no hesitation to conclude that the impugned agreement between the appellant and the respondent is lawful Contract.
The Courts below committed no error of law warranting interference.
The appeal is accordingly dismissed, but in the circumstances without costs as we did not call upon the respondent to argue the case.
N.P.V. Appeal dismissed.
|
The 4 appellants along with 11 others were tried for murder and for causing injuries.
The learned sessions judge while acquitting all others of all the charges, convicted A 1, A 2, A 5 and A 1 on different counts.
The sentences awarded to them under various charges including the sentence of life imprisonment under section 302 IPC were ordered to run concurrently.
The convicted accused preferred appeal to the High Court against their conviction and sentences and the State appealed against the acquittal of the rest of the accused.
The High Court altered the convection of A 1 and A 2 under section 302 I.P.C. and 302 read with section 34 respectively into one under section 302 read with section 149 I.P.C. and confirmed the sentence for imprisonment for life.
Except for this modification the convictions and sentences in respect of all the four accused were confirmed.
The state appeal against acquittal of all other accused was dismissed.
In this appeal preferred by the four convicted accused namely, A 1, A 2, A 5 and A 11 their counsel confined his arguments against their convictions and sentences under section 302 read with section 149 I.P.C. only as the appellants had either already served or had almost finished serving to their sentences awarded to them under other charges.
876 The argument was that in the absence of a specific finding to the effect that apart from the 4 appellants the prosecution has proved the involvement of other persons, section 149 I.P.C. cannot be invoked for convicting them under section 302 I.P.C. Confirming the convictions and sentences of the appellants under other charges but allowing their appeal against their conviction and sentence under section 302 I.P.C. read with section 149 I.P.C. this Court, HELD: Since the accused who are convicted were only four in number and the prosecution has not proved the involvement of other persons and the court below have acquitted the other accused of all the offences, section 149 cannot be invoked for convicting the four appellants herein.
The learned judges were not correct in stating that A1, A2, A5 and A11 can be held to be the members of an unlawful assembly along with some other unidentified persons on the facts and circumstances of this case.
The charge was not that accused 1,2,5 and 11 "and others" or "and other unidentified persons" formed into an unlawful assembly but it is that "you accused 1 to 15" formed into an unlawful assembly.
It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime.
When the 11 other accused were acquitted it means that their involvement in the offence had not been proved.
It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object.
[882A D] Amar Singh vs State of Punjab, [1987] 1SCC 679 and Maina Singh vs State of Punjab, [1976]3SCR 651, followed.
|
ite Petition No. 974 of 1989.
(Under Article 32 of the Constitution of India).
Gobinda Mukhoty, S.K. Bhattacharya and D.K. Garg for the Petitioner.
K. Swamy, R.C. Kaushik (NP) for the Respondents.
The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J.
In this write petition the petitioner has challenged the order passed by the Commandant, 11th Battalion C.R.P.F., the 4th respondent, dismissing the petitioner from service.
The petitioner was working as a Head Constable in the Central Reserve Police Force ("CRPF" for short) on the relevant date.
He joined as a Constable in the year 1963.
He was awarded three medals for performing his duty diligently and in the year 1967 he was given an award of Rs. 500 and a special promotion while fighting in the 897 Nagaland.
He also claims to have been awarded some other such cash awards later.
He was promoted as Head Constable later on.
In total he has put in 20 years of service.
While working as Post Commander of Vijaynagar Post Tirap District, two undertrial prisoners who were Burmese nationals, were handed over on 29.3.83 till further order by the Circle Officer to the custody of the CRPF Vijaynagar Post of which the petitioner was the Post Commander.
On the intervening night of 4th and 5th April, 1983 the two Burmese nationals escaped from the custody.
It was alleged that the petioner was negligent in his duty and that he did not take immediate action to report the matter to the Circle Officer and that he also connived the escape of the two undertrial prisoners and deliberately dug a tunnel to make it appear that the undertrial prisoners had dug the tunnel and and escaped through the same.
On the basis of this incident, a chargesheet was served on 18th August, 1983 on the petitioner and an enquiry was conducted.
The Deputy Superintendent of Police was the Enquiry Officer and he recorded the statements of some witnesses who were then posted under the petitioner.
That Enquiry was cancelled and a fresh enquiry was commenced.
Three charges were framed which are referred to as Articles in the report of the Enquiry Officer.
These are as under: "Article I No. 630110316 HC.
L.S. Pandey of E. Coy 11 Bn.
CRPF while functioning as post Commander of Vijay Nagar post in distt.
Tirap (ACP) from 11/3/83 to 18/6/83 and while functioning a Guard Commander of the Guard post Vijay Nagar post in Distt.
Tirap (ACP) on 5/4/83 committed an offence of remissness in his capacity as a member of the force U/S 11 )1) of CRPF Act, 1949 in that he allowed No. 800210049 Ct.
Md Shamsher Alam to leave the santry post at 0430 hrs without arranging proper relief which resulted in the escape of 2 UTPs from the prisoner cell.
Article II That during the aforesaid period while functioning as post Commander and guard Commander at Vijay Nagar post, the said No. 630110316 H.C.L.S. Pandey of E Coy 11 Bn, CRPF committed an offence of neglect of duty in his capacity as a member of the force U/S 11 (1) of CRPF Act, 1949 in that he did not take immediate action to report the matter to the Circle Officer of Vijay Nagar and sent Crash 898 Message to Bn Hqrs.
When the UTPs were found missing from the UTPs cell at about 0500 hours on 5/4/83.
Article III That during the aforesaid period while functioning as post/guard Commander of Vijay Nagar post of Distt.
Tirap (ACP) the said No. 630110316 HCLS.
Pandey of E Coy 11 Bn, CRPF committed an offence of grave misconduct in his capacity as a member of the force U/S 11 (1) of CRPF Act, 1949 in that he connived the escape of two UTPs and deliberately dug the tunnel to make it appear that the UTPs and deliberately dug the tunnel to make it appear that the UTPs had dug the tunnel and escaped through the tunnel.
He did not handover the guard duty roster to next post Commander No. 630040452 HCB Lakara thereby destroying the documents to prevent its production as evidence.
" The statements of some of the witnesses were recorded.
Thereafter the deliquent 's statement also was recorded.
The deliquent was again given an opportunity to put forward his plea.
He pleaded not guilty and the deliquent was asked to enter his defence by filing a written statement and also produce a list of defence witnesses.
He accordingly gave a list of defence witnesses and only one def witness was examined.
The Enquiry Officer submitted the report holding that the delinquent connived the escape of the two undertrial prisoners and then deliberately dug the tunnel to make it appear that the undertrail prisoners dug the same and escaped and he accordingly recommended that the disciplinary proceedings should be initiated against the petitoner as well as against another Constable Mohd. Shamsher Alam.
On the basis of this report a dismissal order was passed against the petitioner on 30th June, 1984.
The petitioner preferred an appeal under Section 28 of the CRPF Rules to the Deputy Inspector General of Police, CRPF, the appellate authority, but the same was dismissed on 23rd October, 1984.
A further revision filed by him to the Inspector General of Police, CRPF was also dismissed on 2.5.86.
During all these enquiries the plea of the petitioner had been that on 29.3.83, the two undertrail prisoners were entrusted late in the evening and he was not given full strength of 40 Constables and that there were only 11 Constables and it was dark and raining heavily and that neither torches nor candle sticks nor kerosene oil were available.
There were also no locks and stationery and there were no proper arrangements of the building where the two undertrial prisoners could be kept in custody and he also sent a message that more persons should be deputed but no 899 steps were taken.
With regard to the enquiry, his grievance has been that suddenly area of enquiry was shifted from Khonsa to Logding 50 kms.
away and that all the defence witnesses cited by him were not examined.
He has also stated that the first enquiry was dropped and he was exonerated and on the whole the enquiry was not fair and not according to the Rules and that the entire proceedings were mala fide in as much as the first enquiry officer dropped the enquiry and exonerated the petitioner from all charges.
In this writ petition also the same submissions are put forward.
In the counter affidavit filed on behalf of the respondents, it is stated that full opportunity was given to the petitioner during the departmental enquiry and that venue of enquiry was shifted from Khonsa to Longding only to avoid unnecessary delay in the enquiry and that the petitoner never objected to the shifting of the place of enquiry.
It is also submitted that the petioner was given full opportunity to produce the defence witnesses and notices were also served on them but they did not appear.
Regarding the first enquiry it is stated that the same was not completed by the Enquiry Officer.
Therefore a fresh enquiry was ordered and that it cannot be said that by cancellation of the first enquiry the petitoner was exonerated.
It is further submitted that the petitioner was given full opportunity and that he duly participated in the enquiry and no prejudice whatsoever was caused.
On a careful examination of the affidavit, and the counter affidavit and the allegations as well as the denials, we are of the opinion that there are a number of disputed questionss of fact.
The learned counsel for the petitoner, however, submitted that under Article 32 even disputed questions of fact can be gone into by this Court.
He relied on a judgement of this Court in Kavalappara Kottarathil Kochunni Moopil Nayar vs The State of Madras and Others, [1959]Suppl.
2SCR 316 where it is observed that: "Clause (2) of article 32 confers power on this Court to issue directions or orders or writs of various kinds referred to therein.
This Court may say that many particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition.
In both cases this Court decides the petition on merits.
But we do not countenance the proposition that, on an application under article 32, this Court may decline to entertain the same on the 900 simple ground that it involves the determination of disputed questions of fact or on any other ground.
If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights.
We are not unmindful of the fact that the view that this Court is bound to entertain a petition under article 32 and to decide the same on merits may encourage litigants to file many petitions under article 32 instead of proceeding by way of a suit.
But that consideration cannot, by itself, be a cogent reason for denying the fundamental right of a person to approach this Court for the enforcement of his fundamental right which may, prima facie, appear to have been infringed.
Further, questions of fact can and very often are dealt with on affidavits." In support of the same proportion, the learned counsel for the petitioner also relied on the decision of this Court in Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963] 1SCR 778.
Having carefully examined the entire records and the submissions made, we do not think that it is necessary to examine the scope of Article 32 in this case.
Since the petitioner who has been in service for 20 years has been dismissed, we thought fit even to examine and their statements clearly establish the charges framed against the petitioner.
That apart undisputedly the two Burmese national were entrusted to the custody of the petitioner and they escaped and the responsibility entirely lies with the petitioner who was the Post Commander of Vijaynagar Post.
No doubt, he pleaded that the arrangements were inadequate and the two undertrial prisoners took advantage, dug a tunnel through which they managed to escape.
The Dy.
Superintendent of Police who visited the premises inspected the same and made a report and in he said report he clearly observed that there was certainly some negligence on the part of CRPF men for not noticing the activities of the undertrial prisoners and therefore an enquiry was necessary.
In the enquiry report the statements of the witnesses namely the Constables who were on duty are referred to in detail and it is held that the petitioner was the Guard Commander till 5.4.83.
The Enquiry Officer has also referred to the records in this regard and on the basis of the oral an documentary evidence, he concluded that the petitioner committed an offence of neglect of duty and that he did not take immediate action to report the matter to the Circle Officer.
What is more the statements of 901 PWs 1, 3, 4, 5, 6, 8 and 9 go to show that there was no tunnel at all when they reached the spot of hearing the alarm.
It is in the statement of PW 2 that he saw the petitioner digging the tunnel.
In view of these clear statements made by the Constables who were on duty alongwith the petitioner when the two Burmese nationals escaped, the Enquiry Office was justified in recommending disciplinary action.
Under these circumstances, we see no force in the submission that the enquiry was not properly conducted and that prejudice was caused to the petitioner.
After having perused all the records carefully, we are unable to find any clinching circumstances on the basis of which it can be said that the petitioner was not negligent in discharge of his duties and that he did not commit any act of misconduct.
On the other hand we find that the statements of PWs 1, 3, 4, 5, 6, 8 and 9 coupled with that the PW 2 falsify the plea of the petitioner that the undertrial prisoners themselves dug the tunnel and managed to escape.
As already mentioned the learned counsel also submitted that the enquiry is vitiated inasmuch as proper opportunity was not given to the petitioner as all the defence witnesses were not examined and that place of hearing was shifted because of which the witnesses could not be produced and that the cancellation of the first enquiry amounted to exoneration.
therefore, according to the learned counsel for the petitioner, the impugned order of dismissal should be quashed as there is clear violation of his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India.
In this context he relied on decisions of this Court in Tata Oil Mills Co. Ltd. vs Its Workmen, ; State of Uttar Pradesh vs Om Prakash Gupta, ; State Bank of India vs R.K. Jain 7 Ors., [1972] 1 SCR 755 and State of Andhra Pradesh & Ors.
vs Chitra Venkat Rao, ; In all these cases it is laid down that such enquiries must be conducted in accordance with the principles of natural justice and that a reasonable opportunity to deny the guilt and to cross examine the witnesses produced and examined, should be given and that the enquiry should be consistent with the rules of natural justice and in conformity with the statutory rules prescribing the mode of enquiry.
We have already referred to the details of enquiry conducted in the instant case and we are unable to say that there was any violation of principles of natural justice.
It is, however, urged that in these matters merely following the rules in the procedure established is not enough, but the principles of natural justice must also necessarily be followed.
What this Court in a number of cases has been observed is that what particular rule of natural justice should apply to a given case depends to a 902 great extent on the facts and circumstances of the case.
Reliance has also been placed on some of the decisions of this Court.
In A.K. Kraipak and Others vs Union of India and Others, it is pointed out that: "Para 20.
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law validly made.
In other words they do not supplant the law of the land but supplement it.
xx xx xx What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose.
Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
" In Capt.
Harsh Appall vs Union of India and Others, ; the contention was that before confirming the sentence by the court material under the Army Act, an opportunity should have been given to the delinquent officer.
In respect of this contention is observed that: "to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the Court Martial is a contention which cannot be accepted.
To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the Court Martial, is a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed Personnel." (emphasis supplied) As observed in Khemchand vs Union of India, to which there is a reference in some of the decisions cited above all that the courts have to see is whether there was non observance of any of 903 those principles in a given case and whether the same has resulted in defecting the course ofjustice and that what principles of natural justice should be applied in a given case depends on the facts and circumstances of that case (vide State of Uttar Pradesh vs Om Prakash Gupta, In our view even applying all these principles the petitioner has failed to prove that the enquiry is vitiated in any manner.
The last submission of the learned counsel is that the punishment of dismissal is wholly disproportionate to the alleged act of misconduct.
We are unable to go to the extent of holding that the punishment by way of dismissal is arbitrarily awarded.
But there are certain mitigating circumstances.
The petitioner joined as a Constable in the year 1963 and he was awarded medals for the performing his duties diligently.
He has put in 20 yard of service and no act of negligence or misconduct is attributed to him at any time before during this long service.
Under these circumstances if the petitioner makes any representation the concerned authority may consider the question of awarding a lesser sentence.
With the above observations the writ petition is dismissed.
G.N. Petition dismissed.
|
The petitioner, a Head Constable in the Central Reserve Police Force was charge sheeted for negligence in his duty, resulting in the escape of two undertrial prisoners, who were handed over to him for custody.
An enquiry was conducted against the petitioner, but later it was cancelled and a fresh enquiry was commenced on the charges that he allowed a Santry to leave the santry post without arranging proper relief resulting in the escape of 2 undertrial prisoners; that he did not take immediate action to report the matter to the Head Quarters; that he connived the escape of the two undertrial prisoners; that he dug up a tunnel to make it appear that the two undertrial prisoners escaped through the tunnel and that he did not hand over the guard duty roster thus preventing its production as evidence.
Statement of some witnesses and that of the Petitioner were recorded.
Only one defence witness was examined.
The Enquiry Officer submitted his report recommending disciplinary proceedings against the petitioner.
On the basis of the Report , a dismissal order was passed against the petitioner.
The petitioner 's appeal against the dismissal order was dismissed by the appellate authority.
Revision Petition preferred by him also met the same fate.
In the present Writ Petition, challenging the dismissal order, the 895 petitioner contended that during the relevant time, there was absolute shortage of personnel, non supply of torch or candle or kerosene and absence of proper arrangements to keep custody of the undertrial prisoners.
It was also contended that all the defence witness cited by him were not examined and that the enquiry was mala fide since the earlier enquiry was dropped and he was exonerated.
The Respondents contended that no prejudice was caused to the petitioner since full opportunity was afforded to him, that the venue of the enquiry was shifted only to avoid unnecessary delay and the petitioner never objected to it during the enquiry.
As regards the first enquiry, it was contended that since the same was not completed and later cancelled, fresh enquiry was ordered and it did not mean that the petitioner was exonerated.
Dismissing the Writ Petition, this Court, HELD: 1.
It is necessary to examine the scope of Article 32 of the Constitution in this case.
Since the two undertrials were entrusted to the custody of the petitioner and they escaped, the responsibility was entirely on the petitioner.
No doubt, he pleaded that the arrangements were inadequate and the two undertrial prisoners took advantage, dug a tunnel through which they managed to escape.
The Deputy Superintendent of Police who visited the premises inspected the same and made a report in which he clearly observed that there was certainly some negligence in not noticing the activities of the undertrial prisoners and therefore an enquiry was necessary.
The Enquiry Officer, on the basis of the oral and documentary evidence, concluded that the petitioner committed an offence of neglect of duty and that he did not take immediate action to report the matter to the Circle Officer.
The statements of PWs 1, 3, 4, 5, 6, 8 and 9 to show that there was no tunnel at all when they reached the spot on hearing the alarm.
It is in the statement of PW 2 that he saw the petitioner digging the tunnel.
In view of these clear statements made by the PWs viz. the Constables who were on duty alongwith the petitioner when the two undertrial escaped, the Enquiry Officer was justified in recommending disciplinary action, and no prejudice was caused to the petitioner.[900D H, 901A B] Kavalappara Kottarathil Kochunni Moopil Nayar vs The State of Madras and Ors., [1959] (supp.) 2 SCR 316 and Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963]1 SCR 778, referred to. 2.
Whether there was non observance of any of the principles of 896 natural justice in a given case and whether the same has resulted in defecting the course of justice, and what principles of natural justice should be applied in a given case depends on the facts and circumstances of that case.
In the instance case, the petitioner has failed to prove that the enquiry is vitiated in any manner whatsoever.
[902H;903A B] Tata Oil Mills Co. Ltd. vs Its Workmen, [1964] 7Scr 555 ; State of Uttar Pradesh vs Om Prakash Gupta, ; State Bank of India vs R.K. Jain & Ors., [1972] 1 SCR 755; State of Andhara Pradesh & Ors.v.
Chitra Venkata Rao, [1976]1SCR 521; A.K. Kraipak and Ors.
vs Union of India and Ors.
, [1969] 2SCC 262; Capt.
Harish Uppal vs Union of India and Ors., ; and Khemchand vs Union of India, , referred to.
[Though the Petitioner 's challenge to the dismissal order was negatived by the Court, appreciating the mitigating circumstances such as the petitioner 's long service of 20 years in which he was performing his duties diligently and bagging medals therefore, and that no act of negligence or misconduct was attributed to him earlier, the Court observed that if the petitioner marks any representation, the authority concerned may consider the question of awarding a lesser sentence.]
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Civil Appeal Nos.
2012 2013 of 1974.
From the Judgement and Order dated 2.2.1973 of the Calcutta High Court in Appeal No. 211 of 1966.
B. Sen, Mrs. Geetanjali Mohan and Bishan Lal for the Appellant.
Dr. Shanker Ghosh, Darshan Singh, Praveen Kumar, I.B. Gaur and Ms. Shaifali Khanna (NP) for the Respondents.
The Judgement of the Court was delivered by KASLIWAL, J.
These appeals by special leave are directed against the order of the Calcutta High Court dated February 2, 1973.
Brief facts necessary for the determination of these appeals are that Shri Gouri Sankar Sarda (hereinafter referred to as Respondent No. 1) filed a Suit No. 1783 of 1965 in the Calcutta High Court against R. McDill and Company Pvt.
Ltd. (in short Appellant No. 1), Mirilal Dharamchand (Pvt.
) Ltd. (in short Appellant No.2 ) and Shri Misrilal Jain for the recovery of some amounts as well as for some other reliefs.
On or about 15th December, 1965 both the appellant Nos. 1 and 2 who were also defendants in the suit submitted a joint application in the High Court for staying proceedings of the aforesaid suit, under Section 34 of the (hereinafter referred to as 'the Act ').
In view of some formal defect in the application the High Court by order dated 25th February 1966 gave permission to withdraw the said application with liberty to file a fresh application.
As the entire case hinges on the above order dated 25th Feb. 1966, relevant portion of the said order is reproduced as under: 812 :Application withdrawn with liberty to make a fresh application.
Cost to be paid by the applicant.
" Though the above order does not make a mention of the formal defect, but according to the appellants the permission to withdraw was sought as no copy of the plaint was annexed with such application.
Thereafter, on March 21, 1966 the appellant Nos. 1 and 2 instead of making a joint application submitted two separate applications for staying the suit against the respective appellants and in the alternative for stay of the suit as a whole.
These applications were resisted by the plaintiff respondent No. 1 on the ground that separate applications were not in terms of the order dated 25.2.1966 and hence no stay should be granted.
Learned Single judge upheld the objection raised by the plaintiff and refused to stay the suit.
On appeal the Division bench of the Calcutta High Court by order dated 2nd February, 1973 dismissed the appeal.
The Division Bench took the view that liberty was granted to make a fresh application and as such under the provision of Order XXIII of the Code of Civil Procedure, the appellants had no right to move two separate applications for staying the suit.
Aggrieved against the aforesaid Order of the High Court dated 2nd February, 1973 the appellants have filed these appeals by the grant of special leave.
order XXIII C.P.C. as it existed at the relevant time is reproduced as under: ORDER XIII: WITHDRAWAL AND ADJUSTMENT OF SUITS 1.
Withdrawal of suit or abandonment of part of claim: (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
(2) Where the Court is satisfied (a) That a suit must fail by reason for some formal defect or (b) That there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of claim.
813 It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of claim.
(3) Where the plaintiff withdraws from a suit, or abandon part of a claim, without the permission referred to in sub rule he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw the consent of the others".
It was contended on behalf of the appellants that the provisions or Order XXIII were not applicable in the matter of applications filed under Section 34 of the .
It was contended that the provisions of Order XXIII could only apply to the proceedings of a suit and not in respect of any applications filed under the Act.
It was submitted that the High Court committed an error in taking a highly technical view of the matter that initially a joint application was submitted for stating the suit and liberty was given to withdraw the same and to make a fresh application and as such the appellants were not entitled to submit two separate applications though for the same purpose.
It was contended in this regard that there were two separate agreements between the plaintiffs and appellants Nos. 1 or 2 containing an arbitration clause and as such the appellants were given a legal advice to submit two separate applications for staying the suit and the High Court should not have dismissed the applications on the ground that liberty to file fresh application was given in respect of one application only.
Learned counsel for the appellants in support of this contention placed reliance on Nawab Usmanli Khan vs Sagarmal, On the other hand it was argued on behalf of the respondent No. 1 that provisions or Order XXIII C.P.C. were applicable in respect of an application under the Act.
It was contended that basically the proceeding had arisen on account of a suit filed by the plaintiff respondent and in that suit an application was submitted for staying the suit and referring the matter to Arbitrator under Section 34 of the Act.
The Order as such passed by the High Court on 25th February, 1966 would be governed by the provisions of order XXIII of the Code of Civil 814 Procedure and fresh application could only lie in accordance with the terms and conditions imposed at the time of permitting the withdrawal of the first application.
It was contended that it was an admitted position that a joint application was filed for staying the suit and the permission was granted to withdraw the same with liberty to make a fresh application and the defendants appellants had no right to submit two separate applications in violation of the order of the Court dated 25th February, 1966.
Reliance in support of the above contention was placed on Munshi Ram vs Banwari Lal, [1962] Supp.
(2) SCR 477 and Hakam Singh vs M/s Gammon (India) Ltd.; , We would first deal with the question whether the provisions of Order XXIII C.P.C. apply or not to an application for stay of suit filed under Section 34 of the Act.
Section 41 of the Act reads as under: 41 Procedure and powers of Court.
"Subject to the provisions of this Act and of rules made thereunder (a) The provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals, under this Act, and (b) The Court shall have, for the purpose of, and in relation to, arbitration proceeding before the Court.
Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters".
According to the above provision the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court subject course to the provisions of The and of any rules made thereunder.
it has been laid down in various decisions from time to time that the following provisions of the Code of Civil Procedure shall apply to proceedings under the Act.
In the 'Law of Arbitration ' by R.S. Bachawat (2nd 1987 Ed., 585) under the Heading 'Applicability of Code of Civil Procedure to court proceeding ' it has been mentioned as under: 815 Subject to the provisions of the Act and the Rules made thereunder the provisions of the code of civil procedure aplply to all proceddings before the Court and to all appeals under the Act, Section 41(a).
The following provisions of the Code of Civil Procedure have been held to apply to certain proceedings under the Act: (1) Section 20 Hakam Singh vs Gammon (India) ltd.; , (2) Section 96(3) Union of India vs Mohinder Singh & Co., AIR 1971 JK 10.
(3) Section 24 Union of India vs Rup Kishore, AIR 1957 All 504.
(4) Section 114 read with Order 47 Executive Engineer vs Thingom Iboyaima Singh, AIR 1970 Manipur 76.
(5) Order 1 Rule 8 Abdul Gani vs Reception Committee, AIR 1936 Bom.
250: ILR (6) Order 3 Rule 5 Ram Bharosey vs Peary Lal, AIR 1957 All 265.
(7) Order 5 Shrinath Bros. vs Century Spinning & Wvg.
Co., AIr (8) Order 6 Rule 17 Indian Minerals Co. vs Northern India Uime Marketing Association, (9) Order 9 Rule 13 Ganeshmal vs Keshoram Cotton Mills, AIR 1952 Cal 10: ILR (10) Order 23 Rule, 3 Munshi Ram vs Banwari Lal, ; (11) Order 30 Rule 3 Governor General in Council vs Associated Live Stock Farm (India) Ltd., AIR 1948 Cal.
230: 52 CWN 288.
(12) Order 30 Rule 4 Soorajmull Nagarmull vs Sagar Mal, AIR 1978 Cal.
A proceeding under Section 14 Section 17 under the Act is not a suit and the provisions of Section 86(1) C.P.C. read with Section 87 C.P.C. does not apply to such a proceeding (Usman Ali Khan) vs (Sagar Mal,) ; Nor does the provision of Section 80 C.P.C. apply to a proceeding under Section 20 (Ramchand) vs (Governor General in Council,) AIR 1947 sind 147.
The following provisions of the Code Civil Procedure apply to appeals under the Act: 816 (1) Section 96(3) (Union of India) vs (Mohinder Singh & Co.,) AIR 1971 JK 10; (2) Order 41 Rule 5 (Scottish Union of National Insurance Co.) vs (Saraswati Sajnani,) AIR 1960 Cal.
22:63 CWN 800.
Apart from the above cases Section 41 of the Act itself provides that the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court.
We do not find any provision in the Act so as to take away the provisions or Order XXIII C.P.C. from being applied to applications filed under Section 34 of the Act, in a suit.
That apart the case before us has started on a plaint filed by the plaintiff and in such a suit if any application is filed under the Act, the same ought to be governed by the provisions of the Code of Civil Procedure.
In (Munshi Ram) vs (Banwari Lal,) (supra) the facts were that the Arbitrator gave an award.
The award was filed in the court by the Arbitrator.
The appellants made application for setting aside the award and the respondents filed their replies to the application.
Thereafter, the parties came to terms and asked for a decree to be passed in accordance therewith.
The court passed a decree on the award modified by the compromise.
In execution, the appellant contended that the decree was nullity as the Court had no jurisdiction to modify the award by compromise.
It was argued that after a dispute is referred to arbitration and an award has been obtained and filed in Court, it is not open to the Court to record the compromise under Order XXIII Rule 3 of the Code of Civil Procedure, because an award can be set aside or modified as laid down in the , there is no provision in the for recording the compromise, the above contention was not accepted and it was held as under: "When an award is given, the parties cannot, under the Act challenge it except as laid down there.
The powers of the Court are indicated by the Act.
They are limited to accepting the award, if there be no objection and passing a decree in accordance therewith, or superseding the reference or revoking or modifying the award or remitting it for further consideration, as laid down in the Act.
But, the Act does not disable the parties from terminating their dispute in a different way, and if they do it could not be intended by law that a dispute, which had been successfully terminated, should again become the subject of litigation.
If the parties are dissatisfied with the award and want to substitute it by a compromise involving matters alien to the original dispute 817 which are inseparable, the Court may supersede the submission, and leave the parties to work out their agreement in accordance with the law outside the ".
In (Nawab Usmanali Khan) vs (Sagarmal,) (supra) on which reliance has been placed by learned counsel for the appellant it was held that a proceeding under Section 14 read with Section 17 of the Act for the passing of a Judgement and decree on an award does not commence with a plaint or a petition in the nature of a plaint, and cannot be regarded as a suit and the parties to whom the notice of the filing of the award is given under Section 14(2) cannot be regarded as "suit in any Court otherwise competent to try the suit" within the meaning of Section 86(1) read with section 87B, Civil Procedure Code.
In the above case the appellant was the Ruler, or the former Indian State of Jaora.
The had money dealing with the respondent.
The respondent after obtaining a decree in terms of the award started execution proceedings against the appellant.
The Central Government gave a certificate under Section 86(3) read with Section 87B of the Code Civil Procedure, 1908 consenting to the execution of the decree against the properties of the appellant.
The Executing Court passed the prohibitory order under Order XXI Rule 46 of the Code of Civil Procedure in respect of sums payable to the appellant on account of the privy purse.
On an objection raised by the appellant by order dated March 15, 1958, the Court recalled the decree and cancelled the certificate as prayed for, on the ground that the amount receivable by the appellant on account of his privy purse was not attachable.
The respondent preferred appeal before the High Court.
The High Court allowed the Appeal No. 33 of 1958.
Usmanali Khan (appellant) filed an appeal before this Court.
This Court held as under: "Section 86(1) read with section 87B confers upon the Rulers of former Indian State substantive rights of immunity from suits.
Section 141 makes applicable to other proceedings only those provisions of the Code which deal with procedure and not those which deal with substantive rights.
Nor does section 41(a) of the Indian carry the matter any further.
By that section, the provisions of the Code of Civil Procedure, 1908 are made applicable to all proceedings before the Court under the Act.
Now, by its own language section 86(1) applies to suits only, and section 141, Code of Civil procedure does not attract the provisions of section 86(1) to proceedings other than suits.
Accordingly, by the conjoint application of section 41(a) of the Indian Arbitration 818 Act and sections 86(1) and 141 of the Code of Civil Procedure, the provisions of section 8691) are not attracted to a proceeding under s.14 of the Indian .
It follows that the Court was competent to entertain the proceedings under section 14 of the Indian and to pass a decree against the appellant in those proceedings, though no consent to the institution of those proceedings had been given by the Central Government".
The following observations in (Hansraj Gupta) vs (Official Liquidator, Dehra Dun Mussorrie Electric Tramway Co.) [1932] L.R. 60 I.A. 13, 19 made by Lord Russell of Killowen were quoted.
"The word 'suit ' ordinarily means, and apart from some context must be taken to mean a civil proceeding instituted by the presentation of a plaint".
The following observations made by Shah, J. in (Bhagwat Singh) vs (State of Rajasthan,) ; were also quoted with approval: "The appellant is recognised under article 366(22) of the Constitution as a Rule of an Indian State, but section 86 in terms protects a Ruler from being 'sued ' and not against the institution of any other proceeding which is not in the nature of a suit.
A proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of dispute ordinarily triable in a Civil Court, would prima facie not be regarded as falling within section 86 Code of Civil Procedure".
The above observation made by Lord Russell of Killowen and Shah, J. go to show that for a suit the civil proceedings is instituted by the presentation of a plaint.
In the aforesaid background it was held that a proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of dispute ordinarily triable in a civil court, would prima facie not be regarded as falling with Section 86, Code of Civil procedure.
In the case before us as already mentioned above a suit by presenting a plaint was instituted by the respondent No. 1 and thereafter it was sought to be stayed by submitting application under section 34 of the Act.
Thus we are clearly of the view that the above case of (Usmanali Khan) vs (Sagarmal,) (supra) is clearly distinguishable and does not help the appellants in the case before us.
It may be noted that Bachawat, J. who delivered the Judgment in (Usmanali Khan) vs (Sagarmal,) (supra) has himself in his 819 book on the 'law of Arbitration ' under the heading 'Applicability of Code of Civil Procedure to Court Proceeding ' has mentioned a number of decisions wherein the provisions of Code of Civil Procedure have been held to apply to proceedings under the Act.
We have already extracted the above passage from the book of Bachawat, j.
In (Hakam Singh) v (M/s Gammon (India) Ltd.,) (supra) it was held that the Code of Civil Procedure in its entirety applies to proceedings under the by Virtue of Section 41 of the later Act.
The jurisdiction of the Courts under the to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure read with Explanation (II) thereto, the respondent company which had its principal place of business at Bombay, was liable to be sued at Bombay.
Thus in the above case dispute arose between the parties and the appellant submitted a petition to the Court of the Subordinate Judge at Varanasi for an order under Section 20 of the Indian , 10 of 1940 that the agreement be filed and an order of reference be made to an Arbitrator or Arbitrators appointed by the Court to settle the dispute between the parties in respect of the construction works done by him.
In order to determine the place of suing, it was held that Section 20 of the Code of Civil Procedure would govern the case.
Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions or Order XXIII of the Code of Civil Procedure will not apply to the Order passed by the High Court on 25th February, 1966.
We would, now, consider the scope and effect of the order dated 25th February, 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure.
Admittedly, appellant Nos. 1 and 2 were defendants in the suit filed by respondent No. 1.
A joint application was submitted on their behalf for staying the proceedings of the suit, under Section 34 of the Act, Though the order dated 25th February, 1966 does not make a mention of the formal defect on account of which the said application was withdrawn, but the appellants have categorically stated that the same was withdrawn on account of the fact that copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent, we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application.
The said application was allowed to be withdrawn with liberty to 820 make a fresh application.
To our mind, the term 'a fresh application ' used in singular had no more significance than the fact that as both the appellants had submitted one joint application as such the liberty was given to make a fresh application.
The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act the intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act.
The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two seperate applications as there were two different agreements between the appellant Nos. 1 and 2 and the respondent No. 1.
There was no element of mala fide in doing so and the two applications were also submitted on March 21, 1966 i.e. within 30 days of the order dated 25.2.66.
Learned counsel for the respondent No. 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and the proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit.
So far as the pendency of this appeal in this Court is concerned, no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non maintainability of two applications before the High Court and would have contested the applications on merits.
We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent No. 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law.
We are, however, clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated 25th February, 1966.
In view of the fact that it is an old matter, we request the High Court to dispose of the applications filed by the appellants Nos. 1 and 2 under Section 34 of the Act.
At the earliest.
In the result, these appeals are allowed, the order of the High Court dated 2nd February, 1973 is set aside and the case would now be decided by the High court in the manner indicated above.
The parties are left to bear their own costs.
R.P. Appeals Allowed.
|
In a suit filed by plaintiff respondent no.1 before the High Court defendant appellants filed a joint application under section 34 of the for staying proceedings of the suit and referring the matter to arbitration.
In view of some formal defects in the said application, the High Court on 25.2.1966 without mentioning the defects ordered.
"Application withdrawn with liberty to make a fresh application".
on 21.3.1966 the appellants submitted two separate applications for staying the suit in so far as it related to them or in the alternative for stay of the entire suit.
The plaintiff respondent resisted the applications as not being in terms of the order dated 25.2.1966.
Upholding the objection, Learned Single Judge refused to stay the suit.
On appeal, the Division bench of the High Court held that the liberty was granted to 'make a fresh application ' and as such, under the provisions or Order XXIII, C.P.C., the appellants had no right to move two separate applications to stay the suit.
In appeal by special leave to this Court it was contended that provisions or Order XXIII, C.P.C. were not applicable to applications filed under section 34 of the ; and that the High Court committed an error in taking a technical view that as liberty was given to withdraw the application in order to make a fresh application, the appellants were not entitled to make separate stay applications.
Respondent No. 1 supported the impugned judgment.
Allowing the appeals, this Court, 810 HELD: 1.
In view of section 41 of the , subject to provisions of the Act, Code of Civil Procedure, 1908 apply to all proceedings before the Court No. provision in the takes away the provisions of Order XIII, C.P.C. from being applied to applications filed under section 34 of the in a suit.
[814F, 816B] Hakam Singh vs M/S Gammon (India) Ltd, ; relied on.
Nawab Usman Ali Khan vs Sagarmal, ; , held inapplicable.
Munshi Ram vs Banwari Lal [1962] Supp; (2) SCR 477; Hansraj Gupta vs Officlal Liquidator Dehradun Musoorie Electric Tramway Co, [1932] L.R. 60 I.A. 13; Union of India vs Mohinder Singh & Co., AIR 1971 JK 10; Union of India vs Rup Kishore, [1957] All. 504; Executive Engineer vs Thingom Iboyaima Singh, AIR 1970 Bom. 250; Ram bharosey vs Peary Lal, AIR 1957 All. 265; Shrinath Bros. vs Century Spinning & Wvg.
Co. AIR 1968 Bom 443; India Minerals Co. vs Northern India Lime Making Association, ; Ganeshmal vs Keshoram Cotton Mills, AIR 1952 Cal.
10; Governor General in Council vs Associated Live Stock Farm (India) Ltd., AIr ; Soorajmull Nagarmull vs Sagar Mal, AIR 1978 Cal. 239; Ramchand vs Governor General in Council, AIR 9147 Sind.
147 and Scotish Union of National Insurance Co. vs Saraswati Sajnani, Air 1960 Cal. 22, referred to. 2.
In the instant case, apart from section 41 of the providing for application of Code of Civil Procedure and there being no provision taking away provisions of order XXIII, C.P.C. from being applied to the applications for stay filed under section 34 of the , the proceeding started on a plaint filed by the plaintiff and in such a suit if any application was filed under the , the same ought to be governed by the provisions of the Code of Civil Procedure.
[816A c] 3.1 The High Court was not right in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within its order dated 25.2.1966.
[820E F] 3.2 The term 'a fresh application ' in the order dated 25.2.1966 used in singular had no more significance than the fact that as both the 811 appellants had submitted one joint application, liberty was given to make a fresh application, The main purpose of moving the applications under section 34 of the was to stay the suit proceeding.
The intention and purpose of moving two such separate applications was also the same.
The explanation given by the appellants was that they were given a legal advice to move two separate applications as there were two different agreements between appellants No. 1 and 2 and the respondent No. 1 There being no element of mala fide in the two applications having been submitted within 30 days of the order dated 25.2.1966, the same were maintainable .
[820A c]
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