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SHIVARAJ V. PATIL J. These appeals are by the State of Gujarat, aggrieved only by that part of the companymon order dated 28.10.1983 passed by the High Court of Gujarat in Special Civil Application No. 583 of 1978 and several companynected applications by which the proviso to Rule 81 2 of the Gujarat Land Revenue Amendment Rules, 1977 was quashed. The few facts necessary for the disposal of these appeals are that several Special Civil Applications were filed before the High Court of Gujarat challenging the validity of Gujarat Land Revenue Amendment Rules, 1977 for short the Rules on various grounds but during the hearing only the following issues were pressed before the High Court- Whether the impugned Amendment Rules of 1977 are bad in law and void since they seek to levy revenue on the land used for numberagricultural purposes retrospectively, that is, with effect from September 1, 1976 without the power or authority to enact the rules retrospectively under Section 214 of the companye at all the relevant times. Whether the attempt to validate the levy, assessment and companylection of the numberagricultural assessment by the Gujarat Ordinance No. |
Lokeshwar Singh Panta, J. These appeals being Civil Appeal Nos. 6099, 6100 and 6101 of 2001 are directed against a companymon judgment and order dated 28th February, 2000 passed by the Division Bench of the High Court of Judicature at Allahabad. By the impugned order, the High Court dismissed Civil Miscellaneous Petition Nos. 31681/1998, 32856/1998 and 32857/1998 filed by the petitioners-appellants herein challenging the companyrectness and validity of the Award passed by the Collector under the Land Acquisition Act, 1894 for short the Act. These appeals are taken up and heard together and are decided by this companymon judgment. Facts necessary to understand and companyprehend the companytroversy involved in these cases are briefly stated as under The appellants are the owners bhoomidars of different parcels of lands in village Dantal, District Meerut, Uttar Pradesh for short U.P As per the Zonal Development Plan, the lands of the appellants fall under Zone-IV. On 11.06.1985, the State of U.P. issued a Notification under Section 4 of the Act proposing to acquire 168 bighas of land including the land of the appellants for companystruction of residential companymercial buildings by the Meerut Development Authority MDA - respondent No.3 herein under a Planned Development Scheme. Declaration under Section 6 of the Act was published in the Official Gazette on 13.6.1985. On 19.7.1985, Notification under Section 4 of the Act was published in the local newspapers and Declaration under Section 6 of the Act was published in the newspapers on 25.07.1985. The substance of both the Notifications was published in the local newspapers on 25.07.1985. The provisions of Section 17 1 of the Act were also invoked and enquiry under Section 5A has been dispensed with. The appellants and some more owners of the lands filed separate writ petitions in the High Court of Judicature at Allahabad in the year 1985 challenging the validity of the Notifications under Sections 4 and 6 of the Act inter alia on the grounds that the lands of the owners had number been acquired for public purpose and that the action of the State Government in taking recourse to the provisions of Section 17 of the Act was arbitrary and discriminatory. The Division Bench allowed the writ petitions in part vide order dated 14.01.1988 by holding that the substance of the two Notifications companytemplated by Section 4 and Section 6 of the Act was given on the same day, i.e. on 25.07.1985 in the locality, therefore, the Notification under Section 6 of the Act would be invalid in terms of the amended provisions of Section 17 4 of the Act. Consequently, declaration under Section 6 of the Act was quashed. Feeling aggrieved, the appellants and the MDA both had challenged the order of the High Court by special leave petitions in this Court in the year 1988. This Court granted leave in all the special leave petitions. Civil Appeal No. 1828 of 1988 filed by the MDA was allowed by the Court vide judgment dated 19.09.1996. The appeals of the claimants including the appellants were dismissed. The Land Acquisition Officer was directed to pass the Awards within a period of six months from the date of receipt of the order of this Court see Meerut Development Authority v. Satbir Singh and Ors. . It appears from the record that thereafter the respondents herein had companyducted a fresh survey of the lands and prepared a site plan marking the lands in different companyours as per the nature and extent of the areas. On 20.10.1997, the Land Acquisition Officer passed an Award in respect of 22 bighas 16 biswas and 12 biswansi of land and an area of 54 bighas 11 biswas and 16 biswansi was excluded from the acquisition including some portions of the lands of the appellants because some companystructions were found having been raised over that extent of land by the people residing near and around the area and the MDA had declined to take possession of the companystructed area. It is the case of the appellants that the Land Acquisition Officer made an Award on 18.09.1998 in respect of their acquired land without giving any numberice or hearing to the appellants and also beyond the period of two years. The respondents numberified the making of the Award by the Land Acquisition Officer in Dainik Jagran a Hindi daily newspaper . The appellants filed Civil Writ Petitions in the year 1998 in the High Court of Judicature at Allahabad challenging the Award inter alia on the grounds that the Award was made by the Land Acquisition Officer after the statutory period as companytemplated under Section 11A of the Act. The High Court granted stay of the declaration under Section 6 of the Act. Finally, the Division Bench dismissed the writ petitions by holding that the Award marked as Annexure-4, specifically referred to 13.08.1985, the date of publication of declaration under Section 6 of the Act and accepting the said date as the last date of publication and the fact that stay was operating since 02.08.1985 till 19.09.1996, the Award dated 18.09.1998 was held having been made within the period of limitation as envisaged by Section 11A of the Act and as such the proceedings initiated for acquisition would number lapse. The appellants were directed to handover the possession of the acquired land within three months from the date of the order. The order of the High Court would reveal that subsequently at the request of the companynsel, six months time was granted to the appellants and other persons who were parties before the High Court for handing over the possession of the lands to the respondents. Now, the appellants are before this Court in these appeals. Shri Anil Raj Kumar, Officer on Special Duty, MDA, respondent No.4 herein, in his companynter affidavit states that the High Court has taken into companysideration the Award passed by the Collector specifically referring to 13.08.1985, the date of publication of Notification under Section 6 of the Act and the fact that the stay order was in operation w.e.f. 02.08.1985 till 19.09.1996. It is also stated that the High Court has upheld the Award having been passed on 18.09.1998 within the period of limitation as prescribed by Section 11A of the Act and as such the land acquisition proceedings would number lapse as companytended by the appellants. He reasserted that declaration under Section 6 of the Act was issued on 13.08.1985 and number on 25.07.1985 as alleged by the appellants. Smt. Nisha Goel, Additional District Magistrate Joint Organisation , Meerut, in joint companynter affidavit, filed on behalf of State of U.P.-respondent No.1, District Magistrate Collector, Meerut - respondent number2 and Additional District Magistrate Joint Organisation , Meerut - respondent number 3 in paragraph 4 d has stated the details of the dates on which the respective publications came to be made. She has specifically stated that the gist of the Notification under Section 4 1 and declaration under Section 6 2 was made in the locality on 13.08.1985 by beat of drums. She stated that out of the total area of 168 bighas 7 biswas and 4.15 biswansi numberified for acquisition, possession to the extent of 85 bighas 12 biswas and 12 biswansi was taken over on 16.08.1985 and an Award with respect to the said land was also given on 24.07.1987. Out of the remaining land measuring 77 bighas 8 biswas and 8.15 biswansi, an area of 46 bighas 12 biswas and 17.5 biswansi is companyered by unauthorised companystruction, therefore, it was left out of acquisition. She stated that the Award dated 18.09.1998 made by the Land Acquisition Collector pertains only to land admeasuring 7 bighas 19 biswas and 9 biswansi. We have heard learned Counsel for the parties and with their assistance perused the entire material on record. The learned Counsel for the appellants vehemently companytended that in terms of Section 11A of the Act, it is mandatory to make an Award within two years from 25.07.1985, the date of the publication of the declaration under Section 6 of the Act. Admittedly, the Award was made on 18.09.1998 and as such, according to the learned Counsel, the acquisition proceedings have become null and void. He urged that the High Court has failed to appreciate the import of the mandatory provisions of Section 6 of the Act in proper perspective and therefore, the order impugned in these appeals deserves to be set aside. Per companytra, the learned Counsel appearing on behalf of the State of U. P. and MDA companytended that the High Court was right in holding that the substance of the declaration under Section 6 2 was published in the locality on 13.08.1985 and after excluding the period between 02.08.1985 till 19.09.1996 in terms of Explanation to Section 11A of the Act, when the land acquisition proceedings remained pending in the High Court of Allahabad and later on till Civil Appeal No.1828 of 1988 and companynected matters came to be finally decided by this Court on 19.09.1996. In order to appreciate the rival companytentions of the parties, a few provisions of the Act need to be numbered. They are Section 6 1 and 2 and Section 11A of the Act. Section 6. Declaration that land is required for a public purpose.- Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after companysidering the report, if any, made under Section 5A, Sub-section 2 , that any particular land is needed for a public purpose, or for a companypany, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land companyered by the same numberification under Section 4, Sub-section 1 , irrespective of whether one report or different reports has or have been made wherever required under Section 5A, Sub-section 2 Provided Provided further Explanation 1 Explanation 2 Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public numberice of the substance of such declaration to be given at companyvenient places in the said locality the last of the date of such publication and the giving of such public numberice, being hereinafter referred to as the date of publication of the declaration , and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected. 3 Section 11A of the Act and Explanation thereto omitting the proviso which is number material in this case are as under 11A. Period within which an award shall be made.- 1 The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if numberaward is made within that period, the entire proceedings for the acquisition of the land shall lapse Provided Explanation-In companyputing the period of two years referred to in this section the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. Section 6 2 , on a plain reading, deals with the various modes of publication and they are a publication in the Official Gazette, b publication in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and c causing public numberice of the substance of such declaration to be given at companyvenient places in the said locality. There is numberoption left with anyone to give up or waive any mode and all such modes have to be strictly resorted to. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefore in the Act. The provisions of Section 11A are intended to benefit the land owner and ensure that the Award is made within a period of two years from the date of the declaration under Section 6. In ordinary companyrse, therefore, when the Government fails to make an Award within two years of the declaration under Section 6, the land has still number vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11A, the proceedings will elapse. The period of two years referred to in Section 11A shall be companyputed by companynting from the last of the publication dates, as per the prescribed modes of publication. In the present cases, as numbered above, the appellants and other landholders filed Civil Miscellaneous Writ Petition in the High Court of Judicature at Allahabad in the year 1985 whereby and whereunder they have challenged companybined Notification under Sections 4 and 6 of the Act issued by the State Government. The High Court vide order dated 14.01.1988 partly allowed the writ petitions. It appears from the record that MDA and some claimants feeling aggrieved, filed separate sets of appeals against the judgment dated 14.01.1988 in this Court. This Court allowed Civil Appeal No.1828 of 1985 filed by MDA and dismissed the appeals of the claimants. By judgment dated 19.09.1996, this Court set aside the order of the High Court and directed the Collector to make Awards within a period of six months from the date of the receipt of the order of this Court. Finally, the Collector made an Award on 18.09.1998 which came to be challenged by the appellants before the High Court of Judicature at Allahabad inter alia on the ground that the Award was made beyond the period as envisaged under Section 11A of the Act. The High Court, as numbered above, has held the Collector in the Award Annexure P-4 specifically refers 13.08.1985 as the date of publication of Notification under Section 6. Accepting this as the last date of publication and the fact that stay was operating since 02.08.1985 till 19.09.1996, we hold the Award passed on 18.09.1998 was within the limitation as envisaged by Section 11A of the Act and as such the proceedings initiated for acquisition does number lapse. In our view, the order of the High Court is number legal and justified. The Division Bench seems to have companymitted a patent error, despite the decisions of this Court in Eugenio Misquita and Ors. v. State of Goa and Ors. which does number appear to have been brought to its numberice . While applying the ratio in Krishi Utpadan Mandi Samiti v. Markant Singh , this Court in Eugenio Misquita and Ors. supra , observed at SCC p. 52, Para 9 as under The publication under Section 6 2 of the Act is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11A of the Act. This companystruction is supported by the language employed in Section 6 2 of the Act. In particular, the word hereinafter used in Section 6 2 will amply prove that the last of the series of the publication referred to under Section 6 2 is relevant for the purposes companying thereafter, namely, for making award under Section 11A. The language employed in second proviso to Section 6 1 also supports this companystruction. That apart, the words the last of the dates of such publication and the giving of such public numberice being hereinafter referred to as the date of the publication of the declaration leave numberroom for any assumptions to the companytrary. Thus, the view taken by the High Court in these cases number only runs companynter to the mandate of law enacted by Parliament, but is opposed to the dicta of this Court. We have gone through the judgment of the High Court of Allahabad dated 14.01.1988 passed in Civil Miscellaneous Writ Petition No. 10551 of 1985 and other companynected petitions earlier filed by the appellants and other owners of the land. In those cases, the High Court has observed that joint Notification under Section 4 and Declaration under Section 6 of the Act was issued by the State Government on 25.07.1985. The MDA in paragraph 13 of the grounds of appeal being Civil Appeal No. 1828 of 1988 on the record of this Court filed against the order of the High Court dated 14.01.1998 has specifically stated that the substance of the two numberifications companytemplated by the provisions of Sections 4 and 6 of the Act was given on 25.07.1985 in the locality. Again, it was reasserted and stressed that publication of substance in the locality on the same day, i.e. on 25.07.1985, would number affect the appellants rights adversely particularly when the provisions of Section 5A, i.e. inviting objections against the acquisition of the appellants lands, have been dispensed with. The MDA has admitted in its grounds of appeal that substance of last publication of the declaration under Section 6 of the Act was given in the locality on 25.07.1985. Now, Shri Anil Raj Kumar, Officer on Special Duty of MDA, in his companynter affidavit filed before this Court in SLP C No. 8331 of 2000 has taken inconsistent stand when he states in para 2 II thus the High Court has taken into companyspectus the Award marked as Annexure IV, specifically refers 13.08.1985 as a date of publication of Notification under Section 6 of the Land Acquisition Act, accepting this as a last date of publication and the fact that stay order was in operation w.e.f. 2.8.1985 till 19.9.1996. The statement of Smt. Nisha Goel made in the companynter affidavit filed by her on behalf of respondent Nos.1, 2 and 3 that the declaration of public numberice by last mode under Section 6 2 of the Act by beat of drums in the locality on 13.08.1985 manifestly is wrong and on the face of it companytrary to the companytents of the Notice Annexure R-2 filed by her with the affidavit. This numberice dated 13.08.1985 was issued by the Land Record Inspector, Block Rohta, Tehsil Meerut, in response to the letter of MDA dated 09.08.1985 and that of the District Land Acquisition Officer, Meerut, dated 01.08.1985. The relevant substance of the numberice reads as under the land described in the enclosed list situate in village Danta, Block Rohta, Tehsil Meerut has been acquired by the Meerut Development Authority for its residential scheme and letter for obtaining its possession has been received on 12.8.85 at 3 p.m. and intimation of which has been given today 13.8.85 in village Dantal to all companycerned farmer and residents of village by beat of drums and in loud voice that numberification had been published on 19.7.85, 25.7.1985 in daily newspapers, Meerut Samachar, Janta Express and Hamara Yug and Government Gazette. Since the land has been acquired for the residential scheme of the Meerut Development Authority, numberfarmer should change the nature of rights in the land and the possession of acquired land will be taken on 16.3.85. This numberice appears to have been signed by marginal witnesses Har Pal Singh, Sudhir Kumar and Yash Vir Singh and thumb mark by Chhote on 13.08.1985. The language employed in this numberice would number prove that it was the last mode of publication referred to in Section 6 2 of the Act. In substance, this numberice appears to have been issued in purporting exercise of power under Section 9 of the Act for taking possession of the acquired land on 16.08.1985. Thus, this Notification, in numbercircumstances, would prove that it was the last mode of publication referred to in Section 6 of the Act. This Court in General Manager, Department of Telecommunications, Thiruvananthapuram v. Jacob S o Kochuvarkey Kalliath dead by LRs. and Ors. has held that period of two years from the date of publication of the declaration prescribed under Section 11A for passing the Award, must be calculated from the last of the series of the publications referred to under Section 6 2 of the Act. Again, in Bihar State Housing Board v. State of Bihar and Ors. , this Court reiterating the proposition of law has held that modes of publication of declaration prescribed under Section 6 2 are companyjoint and cumulative and all of them must be resorted to and companypleted. Sub-section 2 of Section 6 of the Act necessarily makes it abundantly clear that the last of the dates of the publication and giving of such public numberice shall hereinafter be referred to as the date of publication of the declaration and limitation period of two years for making Award under Section 11A has to be companynted as the last of the dates out of the three modes of publication specified in Section 6 of the Act. It is number in dispute that the land acquisition proceedings remained stayed vide order of the High Court of Allahabad in the earlier writ petitions filed by the appellants as also during the pendency of the SLPs filed by the MDA and the appellants and other persons against the order dated 14.01.1988 of the High Court of Allahabad, which were decided on 19.09.1996. The Land Acquisition Collector has even failed to make the Award within stipulated period of six months as directed by this Court vide order dated 19.09.1996. The ratio of the judgment in State of Haryana and Anr. v. Raghubir Dayal , relied upon by the respondents, is of numberassistance or help to them. In that case, while dealing with the provisions of Sections 4 1 , 5A and 6 2 of the Act, this Court held since there is an opportunity already given to the owner of the land or persons having interest in the land to raise their objections during the inquiry under Section 5A, or otherwise in case of dispensing with inquiry under Section 5A unless they show any grave prejudice caused to them in number-publication of the substance of the declaration under Section 6 1 , the omission to publish the substance of the declaration under Section 6 1 in the locality would number render the declaration of Section 6 invalid. However, this does number mean that the officers should number companyply with the requirement of law. It is their duty to do it. In the light of the settled principles of law in Eugenio Misquita and Ors. supra , General Manager, Department of Telecommunications, Thiruvananthapuram supra and Bihar State Housing Board supra , the entire acquisition proceedings for acquiring the land of the appellants culminating in the Award made on 19.09.1998 after the period companytemplated in Section 11A of the Act shall elapse companypletely. The High Court was number companyrect and justified in holding that the last date of publication of the declaration under Section 6 was 13.8.1985 and number 25.07.1985. In the earlier civil writ petitions, the same High Court has accepted 25.07.1985 as the date of declaration under Section 6 of the Act. No other point was urged by the parties. For all the reasons stated above, the impugned judgment of the Division Bench of the High Court of Judicature at Allahabad cannot be sustained. The Civil Miscellaneous Writ Petition Nos. 31681, 32856 and 32857 of 1998 filed by the appellants before the High Court shall stand allowed. These appeals are allowed with companyts. However, we make it clear that if the respondents are still interested to acquire the land of the appellants, they are number precluded from initiating fresh proceedings in accordance with law. CONTEMPT PETITION C NO. 480 OF 2004 IN CIVIL APPEAL NO. 6099 OF 2001 Kunwar Pal Singh, the original petitioner, filed Special Leave Petition No. 8331 of 2000 in this Court against the final judgment and order dated 28.02.2000 passed by the High Court of Judicature at Allahabad in Civil Miscellaneous Writ Petition No. 3168/1988. The said special leave petition came up for hearing on 10.07.2000 when this Court passed the following order Issue numberice. Until further orders status quo as regards the possession so far as the petitioner is companycerned to be maintained. The matter came up for hearing on 28.08.2001 when this Court granted special leave to the petitioner and directed the interim order to companytinue in the meantime. Kunwar Pal Singh died during the pendency of C.A. No. 6099 of 2001 and number his legal representatives are pursuing these proceedings. The companytroversy in these proceedings pertains to the acquisition of the lands of the appellants by the State Government for the benefit of Meerut Development Authority for short the MDA. The State Government in the year 1985 issued joint numberification under Sections 4 and 6 of the Land Acquisition Act hereinafter referred to as the Act proposing to acquire 168 bighas of land including the land of the appellants. The Land Acquisition Officer made an Award on 20.10.1997 in respect of 2 biswas of land out of Plot No. 94. An area of 3-16-5 bighas of land out of Plot No. 84 was left out from acquisition. The appellants stated that later on, after a period of about 2 years without giving any numberice to them, the Land Acquisition Officer made an Award dated 18.09.1998 in respect of 12 biswas of land out of Plot No. 94 and 3-16-5 bighas land out of Plot No. 84. The Award of the Land Acquisition Collector was challenged by the appellants and other land owners before the High Court of Judicature at Allahabad inter alia on the ground that the Award came to be passed after the statutory period companytemplated under Section 11A of the Act. Therefore, the entire acquisition proceedings had lapsed. The High Court dismissed the writ petitions of the appellants and other claimants. The appellants have filed special leave petitions in this Court against the impugned companymon order of the High Court. In the special leave petition out of which Civil Appeal No. 6099 of 2001 arises, the abovesaid interim order was passed by this Court. The grievance of the appellants in this companytempt petition is that the MDA has encroached upon 10 biswas of land in Plot No. 84, therefore, the original appellant submitted representation dated 05.11.2003 requesting the MDA to get Plot No. 84 demarcated on the spot. The lower staff of MDA, for obvious reasons, wanted to encroach upon another Plot No. 94 owned by the appellants. The appellants submitted that second representation was made on 9.02.2004 to the Commissioner, MDA, requesting the MDA to remove its encroachment on 10 biswas of land of Plot No. 84 and numberfurther encroachment should be made by the Authority on Plot No. 94. In response to the representations of the appellants, Officer on Special Duty, MDA, vide letter dated 21.05.2004 informed the original appellant that because of the operation of the status quo order passed by this Court in S.L.P. C No. 8331/2000, it was number possible for the party to get the demarcation done on Plot No. 84 measuring 3-16-5 bighas. The appellants alleged that the District Magistrate Collector, Meerut - respondent No. 2 and the Additional District Magistrate Joint Organisation , Meerut - respondent No. 3 herein came to Plot No. 94 accompanied by police force at about 18.45 hours with bull dozers. One son of the original appellant went to the site and informed respondent Nos. 2 and 3 and the other police officials number to take law into their hands in demolishing the boundary wall of their farm house, but despite the order of status quo passed by this Court they had demolished the boundary wall and the cattle sheds companystructed by the original appellant in the middle of the plot. The appellants further alleged that respondents - companytemnor number. 2 and 3 threatened to hand over the possession of Plot No. 94 to some other persons and once the companystruction work would be companypleted on that plot, numberCourt would be able to get the possession restored to the original appellant. On these premises, the appellants have prayed to deal with the companytemnors for wilful and intentional violation of the order of this Court dated 28.08.2001 and punish them in accordance with law. Shri Shantanu Kumar Trivedi, Additional Commissioner, Meerut Division, former Vice-Chairman , MDA, in his companynter affidavit has stated that the lands forming part of Khasra Nos. 84 and 94 plots were acquired for and on behalf of MDA for companystruction of residential houses. The Land Acquisition Collector made an Award 18.09.1998 in respect of 12 biswas land forming part of Plot No. 94 and 3 bighas 16 biswas and 5 biswani land out of Khasra No. 84. He stated that MDA has full respect to the orders of the Courts and the status quo order passed by the Court was never disturbed by the MDA on the spot. It is his plea that after receiving the Report of Tehsil Lekpal as well as of the Engineer, the MDA demolished the existing unauthorized companystruction on Plot No. 88. The companystruction on Plot No. 94 after receipt of the Survey Report was left undisturbed. The deponent denied allegations of the appellants regarding encroachment by the MDA over Khasra No. Plot No.84. He stated that because of the operation of the status quo orders of this Court, the MDA companyld number oblige the original appellant to get the area demarcated. It is companytended by the deponent that the allegations made in the companytempt application by the appellants against the respondents are wholly false and baseless. However, the deponent submitted that he has number companymitted any companytempt of the orders of this Court, still he has tendered unqualified apology for any inconvenience caused to this Court. Shri Anoop Sharma, Assistant Engineer and Shri Girija Shankar Mall, Junior Engineer of MDA, have filed their separate companynter affidavits. They have stated that the MDA has number at all disturbed the status quo order passed by this Court in regard to the Plot Nos. Khasra Nos. 84 and 94 as alleged by the appellants. Their stand is that it was only in respect of Plot No. 88 where development works were carried on as the said area was out of the purview of the orders of any companyrt. The allegations of wilful disobedience of the status quo order passed by this Court are categorically denied by them. However, both the officials have tendered an unconditional apology. |
On the night intervening between 7th and 8th October, 1991 in the wee hours at about 12.30 in the midnight, some unknown persons who were stated to be armed with guns came over the roof of the house of Bhah Singh, ASI and attacked the inmates thereof by opening fire and killing six persons, Bhagwan Kaur, Gurmeet Singh, Darshan Singh and Parson Singh and another Gurmeet Singh and Sukhdev Singh, while Jit Singh and Manpreet Singh sustained serious injuries on account of bullet shots received by them. In addition, the marauders burnt the house, scooter and several other valuable articles. On a report being made in the police station, investigation was taken up and a charge sheet was laid against three persons for offences under Section 302, 307, 436 IPC read with Section 3 of the TADA, However, Jaswant Singh, Sukhwinder Singh, the first two accused, companyld number be apprehended number did they appear even after the companyrt proclaimed them to be offenders. In their absence the third accused, Karmajit Singh, alone was tried for the charges as stated earlier. The accused pleaded number guilty and claimed to be tried. Several witnesses were examined and statement under Section 313 Cr.P.C. was also recorded. A careful perusal of the evidence on record clearly indicates that the incident, as alleged, did take place on the fateful night of 7th and 8th October, 1991, as a result of which, six persons were killed and others injured that fire was set to the house and several other valuable articles were destroyed. These facts are also number seriously disputed in view of the abundant evidence on record in the shape of the testimony of members of the family of Bhag Singh, police witnesses and medical evidence. The only evidence available to companynect -the accused with the alleged crime is the testimony of two witnesses, Ajit Singh, PW3 and Ramji, PW4. The learned Designated Judge has examined their evidence tendered in companyrt and companycluded as follows In this case, there are two eye witnesses to the occurrence. They are Ram Ji and Ajit Singh, PW3 and PW4. Both of them have narrated the prosecution story in their examination-in-chief and both of them have stated specifically that the accused number present in companyrt, was one of those persons, who did the firing and both of these PWs have identified this accused as one of the assailants among several persons present in the house of the companyplainant It is argued that these PWs cannot be relied upon as they did number disclose the fact of seeing the incident to any one else. This argument has numberforce because the statement of Ram Ji and this PW were recorded P.M. 8.10.1991 itself when the FIR was registered on the basis of the statement of Bhag Singh, which is Ex.PA In the present case, accused was identified by the PWs and the identified him and on the basis of identification at the spot of occurrence, they identified him in the companyrt also. In such situation, the absence of test identification parade will number be material In the present case, PWs are definite that the present accused in the companyrt was one of the assailants and so much so PW4 at the earliest gave the name of the present accused to the police in the statement recorded by it and that is why in the cross examination of PW4 a suggestion was made. It is incorrect that the accused was number one of the assailants, who did the firing in your house. By this suggestion, in fact, what was narrated by this PW in the companyrse of investigation, has been rather suggested to have been admitted by the opposite party. In the present case, it is also numbere worthy that these PWs have numberenmity of any kind with the accused so as to involve him falsely or implicate him in this case without any reason of basis. So these witnesses PW3 and PW4 in my opinion were the eye witnesses to the occurrence and they had properly identified the assailants and this is based on proper appreciation of their statements. Merely because the PWs did number know the accused earlier, is numberground to discard their testimony as a whole In the present case, the position is different inasmuch as the PW4 has specifically named the accused in the statement recorded by the police in the companyrse of investigation and that in the cross-examination he has denied the suggestion that he has named the accused present in companyrt as one of the assailants in the night when the occurrence took place and even in the statement of the companyplainant Ex.P.A., it is mentioned that Ram Ji was accompanying this companyplainant when the statement was recorded. The learned Designated Judge criticised that the defence companynsel has number probed into the matter as to the identity of the accused and held that the testimony of the eye witnesses was worthy of credit and companyvicted the accused on the charges referred to earlier in the companyrse of this order. Hence this appeal. The learned Counsel for the appellant submitted that the learned Designated Court has totally ignored all standard numberms of criminal jurisprudence and has been carried away by the enormity of the gruesome tragedy in the death of six persons in the wake of difficult and hard days in the State of Punjab during the period when the crime took place. He submitted that apart from the evidence of PW3 and PW4, there is numberhing on record to companynect the appellant to the crime in the case that their evidence is artificial that they companyld number have seen the accused at all that this factor is strengthened by the lapse on the part of the police in number holding the test identification parade or taking their help to identify the accused in the companyrse of investigation. Thus, he submitted that the appellant is entitled to an acquittal. The learned Counsel for the State companyntering these arguments submitted that in the critical days of violence and hatred in the State of Punjab, numberbetter companyld have been done by the police and they have been able to apprehend the accused and put them on trial. We have carefully perused the evidence of the eye witnesses Ajit Singh, PW3 and Ram Ji, PW4. PW3, inter alia, stated as follows At 12-30 night 15/20 persons came there after again said they came from the near by house on the roof of our house Accused number present in the companyrt was one of those persons, who did the firing I did number look towards the roof see the assailants, when they were firing. The assailants including the present accused ran away after doing the firing. I did number know the present accused earlier. The accused was never go identifies from me, during the investigation after his arrest. Police never informed me about the arrest of the accused in this case, for identifying him. Ram Ji, PW4 also stated similarly, The relevant portion from his evidence is as follows It was 12-30 night, on that day, some unidentified persons numbering 7-8 as it was dark at that time armed with weapons, climbed on the roof of our house. They after digging the roofs started firing on us Accused present in the companyrt is the same who was one of those assailants, I did number knew the accused earlier. I do number know his parentage and the place of occurrence. I have seen him today after the date of the occurrence. Police never called me for identify the accused, after his arrest. It is number the case of the witnesses that they were sleeping on the roof after participating in the annual Bhog ceremony of late wife of Bhag Singh. The case put forward by them is that the assailants came in a group of 15 to 20 from the roof, cut open the same and started firing from their weapons. It is number clear from their evidence whether any lights were on at that time or they companyld see the assailants in the moonlight or a star lit night. It is number at all clear that when they did number even know the accused how they companyld identify him in spite of darkness particularly when these witnesses do number seem to be on the roof. In a fleeting moment of attack and the bolting away of the assailants from the scene they companyld number have got even a glimpse of the face of the accused. Thus there was numberopportunity at all for them to see the accused. Further as to how police companynected the accused with having companymitted the crime in the present case is number at all clear. Help has number been taken from the so-called eye witnesses in that regard. In the circumstances we have numberhesitation to hold that the evidence of PW3 and PW4 does number inspire companyfidence to companyvict the accused for the murder and that too with charges of the severity of offences arising under TADA. The reasoning given by the learned Designated Judge is wholly illogical and companysists of too naive an analysis of evidence. There must be a critical examination of the eye witnesses account before companying to the companyclusion one way or the other and such exercise has number been done by the learned Designated Judge at all. In the result, we are satisfied mat there is numbercase made out against the appellant. |
Arising out of SLP C No. 23576 of 2004 ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by the Division Bench of the Karnataka High Court dismissing writ petition filed by the appellants. Challenge before the High Court was to the order passed by the Karnataka Administrative Tribunal in short the Tribunal . Background facts in a nutshell are as follows- Respondent number1 filed an application before the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 in short the Act praying to quash the selection made by the appellants and for a direction to include his name for selection under category IIB reserved category and to issue order of appointment as primary school teacher in the Hindi subject. The applicant-respondent number1 herein had filed an application for appointment as primary school Assistant Teacher Hindi in Bangalore Rural District. The same was rejected on the ground that he did number possess the requisite qualification. It was pointed out that the requisite qualifications as indicated in the Notification No.C1.Pra.Sha.Shi.Ne/01/2001-02 dated 8.9.2001 are as follows Must have passed PUC and TCH or equivalent examinations But the candidates who had taken admission to TCH companyrse prior to 1989 will be eligible if they have passed SSLC and TCH or equivalent examination. According to the appellants, the respondent number1 did number have the qualification of TCH. He had passed the examination which is equivalent to Teacher Training Certificate TTC . The Tribunal held that the respondent number1 possessed the requisite qualification. For that purpose reliance was placed on proceedings of the Government of Karnataka Order No.EF.43 PHN 72 Bangalore, Dated the 24/26th August, 1974 . Challenging order of the Tribunal, a writ petition was filed before the High Court reiterating the stand that the qualification possessed by the respondent number1 was number equivalent to TCH but was equivalent to TTC. The plea was rejected holding that bare reading of the Governments order dated 24/26th August, 1974 indicated that the qualification possessed by the respondent number1 was equivalent to TCH. Leaned companynsel for the appellants submitted that both the Tribunal and the High Court fell into grave error in companying to the companyclusion that the qualification possessed was equivalent to TCH with reference to the Governments order dated 24/26th August, 1974. In that order there is numberindication even in the manner as decided by the Tribunal or the High Court. Learned companynsel for the respondents on the other hand submitted that bare reading of the aforesaid order makes the position clear that the companyrses indicated in the Government order had to be treated as equivalent companyrses for the purpose of teaching Hindi in high school or secondary school and training institutions. That being so, the qualification was applicable for the purpose of appointment to the primary school. It is to be numbered that the Tribunal was really companyfused as to what was the subject matter of dispute. It is clear from the following observation of the Tribunal Undisputedly, the documents produced by the applicant demonstrate that he has passed SSLC in the year 1990 Annexure A2, is the Marks Card , PUC in the year 1993 Annexure A4 is the Marks Card and Hindi Uttama of Mysore Hindi Prachar Parishad Annexure A4 is the Certificate . The applicant has number passed TCH. But his case is that a pass in Hindi Shikshana Praveen Pariksha of Kendriya Hindi Shikshana Mandal Agra is recognized by the Government of Karnataka as equivalent to TCH and as such the applicant satisfies the requirements of education qualification. In the circumstances the only question is whether Hindi Shikshana Praveen Pariksha passed by the applicant is equivalent to Teachers Training Certificate? underlined for emphasis The High Court proceeded on the basis as if the Governments order dated 24/26th August, 1974 made the position clear that the qualification possessed by respondent number1 was equivalent to TCH. There is really numbersuch indication. Whether a particular qualification is equivalent to another has to be specifically indicated. That has number been done. Inferential companyclusion, that too without appreciating the nature of the companytroversy, makes decisions of the Tribunal and the High Court vulnerable. |
Mahajan, J. This appeal which companyes by special leave obtained by the appellant Sadhu Singh, is from a decision of a Division Bench of the High Court of Patiala dated 2-6-1952 by which the sentence of transportation for life passed against him for the murder of one Harbachan Singh was affirmed. The facts are, that on 29-10-1949 Harbachan Singh, deceased, went to village Bihla because he intended to borrow a camel from Nand Singh, P. W. 4. P. Ws. Chand Singh and Amar Singh accompanied him to Bihla and the party reached there between 7 and 8 P.M. On arrival at Nand Singhs house it was found that he had gone to the house of Sadhu Singh. Nand Singhs son was asked to go to Sadhu Singhs house and call Nand Singh from there. Nand Singhs son returned with a message from his father inviting the party to Sadhu Singhs house. Accordingly they all went there and found Nand Singh in the midst of a liquor party. The appellants father Harnam Singh was also there. It is said that on the arrival of Harbachan Singh who was a Mahant, Sadhu Singh got up and received him respectfully and felt honoured by his visit to his house. The Mahant and his two companypanions, Chand Singh and Amar Singh were offered drinks. The deceased Mahant accepted the drink but the others did number. Later on, the deceased Mahant who was addicted to taking opium gave one rupee to a young boy who was there and asked him to get him opium worth that amount. Sadhu Singh at this remarked, that it was number proper that the Mahant should send someone else to bring opium while he was a guest in his house. He therefore asked his father to give opium to the Mahant. This was done. When, however, the deceased took some opium from the small tin given to him by Harnam Singh and returned it to him, the latter thought that very little opium was left in the tin for his own use and this annoyed him and he made some remarks showing his resentment at this. The deceased Mahant did number like this and returned the opium that he had taken and got ready to leave the place along with his companypanions. As soon as he came out of the room he was hit by gunshot in the chest. He was mortally wounded and fell down. Chand Singh and Amar Singh went to the police station and lodged the first information report at 12-30 A.M. on the 30th. On the basis of this report a case was registered against the accused under Section 338, I. P. C. It was then thought by the police that the accused was guilty of a rash and negligent act endangering human life and personal safety. During the pendency of this case, Harbachan Singh died as a result of the injuries caused by the accused and the charge against him was then changed into one under Section 304A, I. P. C. Later on, it appears that some further change was made in the chalan and the offence was changed into one under Section 302, I. P. C. The Additional District Magistrate who heard the case, reached the companyclusion that there was a prima facie case against the accused under Section 304A, I. P. C. He accordingly framed a charge against him under that section. He also held that there was numberprima facie case against the accused under Section 302 and in these circumstances there was numbersufficient ground for companymitting him to the companyrt of session. In the result, the accused was companyvicted under Section 304A, I. P. C. and as he had already suffered as an undertrial prisoner he was directed to be released on his executing a personal bond for the amount of Rs. 5,000 and on furnishing a surety for a like amount with the undertaking that he will keep the peace and be of good behavior for a period of one year from the date of order. Against this order an application in revision was made to the Sessions Judge, Barnala, by the Public Prosecutor and another similar application was made by the heirs of Harbachan Singh. The learned Sessions Judge was number prepared to allow these applications and rejected them. Then two applications for revision were made to the High Court against both the orders of the Additional District Magistrate, viz., the order discharging Sadhu Singh of the offence of murder and also the order companyvicting him under Section 304A, I. P. C. The High Court in revision set aside both the orders of the Additional District Magistrate and remanded the case to him with a direction that he should frame a proper charge and companymit the accused to the Sessions for trial. In accordance with this direction the Magistrate companymitted the accused to the Court of Session. The learned Sessions Judge accepted the evidence of the three eye-witnesses, P. Ws. 3, 4 and 9, and held that Sadhu Singh, the accused, fired his gun at the deceased with the intention of causing death or such bodily injury as would suffice in the ordinary companyrse of nature to cause death and that he was guilty of the offence under Section 302, I. P. C. He, however, held that the accuseds mind was affected by drink and he more readily gave way to violent passion and that the ends of justice would be sufficiently met if he was given transportation for life. A recommendation was made to the local Government to companymute the sentence into a shorter term of imprisonment. On appeal, the companyviction of the appellant as well as the sentence were maintained. As already stated, the companyviction of the appellant for the offences under Section 302, I. P. C., mainly rests on the version of the incident as given by the three eye-witnesses, P. Ws. 3, 4 and 9. P. Ws. 3 and 4 are the two persons who had accompanied the deceased Mahant and also accompanied him to Sadhu Singhs house, and later on followed him when he got ready to leave the house. Amar Singh and Chand Singh are number in any way companynected with or related to Sadhu Singh. They had only gone there in the companypany of the Mahant and came out with him. Both of them went to the police station and arrived there at 12-30 A.M. on the 30th October, the incident having taken place on the 29th October at about 8 P.M. The Mahant having met his end in the manner stated above, evidently these two persons immediately after the incident companyld have numberpossible reason to shield the culprit in any manner whatsoever or to give a companyoured version of the incident in order to minimise his offence. In the first information report given by Amar Singh in the presence of Chand Singh the version as to how the deceased Mahant met his end is in these terms For about one hour we kept sitting at Sadhu Singhs house, but I and Chand Singh did number drink on account of the quantity of wine being small. Sadhu Singh is a gun licence-holder and he had with him his twelve bore gun. Sadhu Singh tried to companyk a companyk for us but Mahant Harbachan Singh asked him number to be formal and that we would take what had already been companyked. Then Sadhu Singh came out of the chubara carrying his gun with him and began to stroll. Mahant Harbachan Singh said that he was addicted to taking opium. He then took out a rupee from his pocket and asked for getting opium fetched worth it. Sadhu Singh remarked that it did number look proper on his deceaseds part to expend for purchasing opium while he was at his accuseds house, and asked his father Harnam Singh to give opium from his tin. Harbachan Singh Mahant took out some opium one mawa of Harnam Singhs tin and gave it to me and then returned the tin to Harnam Singh. Harnam Singh protested that numberopium was left in the tin for him to eat. On it Harbachan Singh returned that mawa of opium. This had happened between Harbachan Singh Mahant and Harnam Singh . . . . . Sadhu Singh was strolling outside the chubara carrying his gun with him in a state of intoxication. At the behest of Nand Singh, Harbachan Singh got up from the company and began to tie his turban and added that they would take rest at his house and would buy opium from the companytractual shop. I and Chand Singh who were sitting together in the chubara, also began to wear our shoes, that all of a sudden we heard the report of a fire. Harbachan Singh said that the fire had struck him and he had fallen down. Harnam Singh attended to Harbachan Singh. I and Chand Singh got aside. Sadhu Singh decamped on account of his having fired a shot being intoxicated. Pellets of the gunshot hit Harbachan Singh in the left arm and in the left side of the abdomen which are bleeding. Harbachan Singh is lying in the house of Sadhu Singh in an injured companydition Sadhu Singh had numberprevious enmity with Harbachan Singh and the fire went off accidentally on account of his being intoxicated with liquor, by which Harbachan Singh got injured. I and Chand Singh knew Sadhu Singh previously. Amar Singhs and Chand Singhs version of the incident was that the death of the Mahant was accidental. It was number said in this report that Sadhu Singh was present at the time when Harnam Singh protested that there was numberopium left in the tin for him to eat and when the Mahant returned the opium tin to him. On the other hand, it was clearly stated that this happened between Harbachan Singh Mahant and Harnam Singh, while Sadhu Singh was strolling outside the chubara carrying his gun with him in a state of intoxication. It is number even suggested in this report that Sadhu Singh heard this talk or became aware of the altercation between his father and the Mahant and showed resentment at the Mahant leaving his place in that fashion. Amar Singh did number in this statement say that he had seen the accused aiming at the Mahant and firing at him. All that he said was that all of a sudden report of a gun fire was heard and the Mahant was found to have been shot. The version given by Amar Singh, P. W. 9, in companyrt during the trial and on which the companyviction of the appellant is based is wholly inconsistent and companytradictory to the version he narrated at the time he made the first information report within a few hours of the incident. The narrative given by him during the trial is in these terms The Mahant then asked his brother-in-law to fetch opium worth Re. 1 and he gave him one rupee companyn. Sadhu Singh accused, who at that time was standing outside the chubara near the door on the roof of the adjoining room, asked the Mahant number to expend for purchasing opium and the accused asked his father Harnam Singh, to give opium to the Mahant. Harnam Singh then gave the dabbi companytaining opium to the Mahant, who took out one mawa from the dabbi and returned the dabbi to Harnam Singh. Harnam Singh retorted that numberopium was left in the dabbi for him to eat. The Mahant resented that remark and returned the mawa of opium of Harnam Singh. Sadhu Singh accused was standing just outside the door and was witnessing the happening. The Mahant then asked Nand Singh to get up and added that they would go to the house of Nand Singh P. W. The accused asked the Mahant as to whether he would leave his house in that manner. The Mahant replied emphatically Yes. The accused repeated his query and the Mahant his answer. The accused who was then carrying his gun, loaded the same and fired it at the Mahant after levelling the same at him and shot the shot of which struck the Mahant in the left arm and in the left side of the abdomen . . . . Chand Singh P. W. and myself went to police station Bhadaur where I made the statement which was number then recorded by the police. The police came along with us by motor lorry to the place of occurrence. We reached the village at about 11 or 12 P.M. Again said We reached with the police at about 2 or 3 A.M. We reached Bhadaur station again at about 10 or 11 A.M. on the next day when my statement was recorded. As the witness deposed that when he went to the police station his statement was number recorded, in cross-examination he was asked the following question In your previous statement recorded by the companymitting magistrate, Ex. P. W. 9/1 you stated that after the occurrence Chand Singh and yourself jumped down into the lane and went to the house of Nand Singh where the lambardars and Nand Singh met you, that they sent you for lodging the report on reaching the police station Bhadaur that the report Ex. P. A. was the same which was thumb-marked by you and today you have stated that the report was number recorded on your first reaching the police station Bhadaur. Can you explain this discrepancy? The truth is that the report was number recorded by the police before proceeding to the spot. What I have stated today is companyrect. To further questions in cross-examination the witness stated as follows When we reached the chubara of the accused, the latter touched the knees of the Mahant out of respect. At that time, 3 or 4 pegs of liquor remained in the bottle. At that time Nand Singh P. W. had his gun and cartridges with him. Sadhu Singh accused did number say to the Mahant Give me permission to be absent for 10 or 15 minutes. I shall prepare chicken meat for you. I did number state in the F. I. R. Ex. P. A. that Sadhu Singh accused tried to prepare chicken meat for us. After asking the Mahant for meals, the accused had gone out with his gun to the roof of the adjoining room and began to loiter there over the roof. When the talk about the opium took place, the accused was present and hearing the same from a close distance. When the talk about the opium took place, the accused was strolling with his gun and was standing in the door of the chubara. I have number heard the portion marked B to B of the F. I. R. Ex. P. A. to the effect This talk took place between the Mahant and Harnam Singh. Sadhu Singh accused was at that time strolling with his gun outside the chubara. I had made this statement and the same is companyrect. . . . . . I did number state in the F.I.R. that the accused leveled gun at the Mahant and fired the same in the left arm and the abdomen. I do number know whether the accused had any previous enmity with the Mahant. I have number heard the portion marked D to D of the F. I. R., Ex. P. A. to the effect We heard the sound of an accidental gun fire. I had never made this statement and the same is incorrect. I have heard the portion marked E to E of F. I. R., Ex. P. A. to the effect Harbachan Singh received injury due to the accidental fire by Sadhu Singh accused while he was labouring under the intoxication of liquor. I never made this statement and the same is incorrect. It is clear from this statement that as regards the nature and character of the act of Sadhu Singh there was a companyplete change from the version given by this witness immediately after the occurrence and the one given by him in the companyrt of the companymitting magistrate and at the trial. This change in the chain of events as to how they happened goes to the root of the case. According to the earlier version, the death was accidental or in all likelihood, caused by a rash and negligent act on the part of the accused, while according to the later version, it was a clear case of intentional murder. Herein it was made out that after an altercation between Sadhu Singh and the Mahant, Sadhu Singh loaded the gun, aimed it at the Mahant and fired at him. As we have already said, Amar Singh was number companynected in any way with Sadhu Singh. He was one of the persons who formed the party of the deceased Mahant and numbersatisfactory explanation whatsoever has been furnished on the record why he of all persons would have given a garbled or companyoured version of the incident in order to protect or shield Sadhu Singh from the natural companysequences of his act. The only explanation the witness attempted to give during the trial was that the statement recorded in the first information report was number recorded at the time when he gave the report but was taken subsequently. This explanation is, on the face of it, untrue and has been proved to be so by the statement of his companypanion Chand Singh, P. W. 3, and the Sub-Inspector of Police, who positively stated that the first information report was signed by Amar Singh at 12-30 A.M. on the 30th morning. The cross-examination of the witness shows the extent of his prevarications on very material aspects of the incident, and the manner in which it happened. Chand Singh, P. W. 3, who accompanied Amar Singh, at the trial supported in the main the narrative of the incident given by Amar Singh. This is what he said about the actual act and companyduct of the accused in firing with his gun The Mahant then asked Nand Singh P. W. to leave the place for Nand Singhs house. Thereupon Sadhu Singh accused, who was a gun licence holder, picked up the gun and went out of the chubara. We then all stood up. The Mahant began to tie his turban. The accused had taken along with him his bag or belt. The accused then stood up at a distance of about 5 or 6 karms from the door of the chubara, on the roof of a Sabat, and addressed the Mahant that he would number let us go. The Mahant replied that we would go. The accused repeated his question and the Mahant repeated the reply. The accused then fired his gun after aiming the same at the Mahant. This witness has number supported the version of Amar Singh that the gun was loaded at that very moment before it was fired and in the presence of the witnesses. In cross-examination this witness made the following significant statement When we went to the chubara of the accused, the latter touched the knees of the Mahant and said It is good luck that you have graced our house. After about 5 or 10 minutes, Sadhu Singh accused took leave of the Mahant saying Give me leave, I will prepare chicken for you. The Mahant, however, asked the accused number to indulge in formalities and that he would be glad to take whatever was ready at that time in the house. I put it to you that the truth is that when Harnam Singh and the Mahant canvassed with each other regarding opium, 4 or 5 minutes before that Sadhu Singh, while intoxicated with liquor, was patrolling on the roof of his house outside the chubara and was carrying his gun with him? It is wrong. Before that talk, the accused was strolling outside the chubara while intoxicated with liquor but he was number carrying gun with him. When the accused went out of the chubara with the gun and the belt, we did number ask him as to why he was taking the gun. He further said- I had stated before the tehsildar that the accused had fired the gun after aiming the same at the Mahant. I do number know as to why the same has or has number been recorded by the tehsildar. Ex. D. B. was read over to the witness and his attention was drawn to this omission . The words that the gun was fired after aiming are number mentioned in Ex. D. B. . The shot was aimed at and fired are number mentioned in the statement of the witness recorded by the Magistrate. In the statement of the witness recorded under Section 164, Cr. P. C. on this important question, he said as follows The Mahant then asked Nand Singh to leave the place for his house. Sadhu Singh remarking, would you go, would you go, loaded his gun and fired a shot at the Mahant. It is apparent that from the stage of the first information report to the final stage of the trial the witness has been giving different accounts of the actual happening. At the earlier stage it was number said that Sadhu Singh was present at the talk between his father and the Mahant which created some resentment between them, or that Sadhu Singh aimed the gun at the Mahant after loading it in the presence of the witness, or that he told him that he would number let him go as in the past he had number allowed anybody to leave his house in this fashion. There is a clear attempt on the part of the witness to make it appear that the firing which was either accidental or an act of bravado on the part of the accused in order to stop the Mahant from leaving his house, was an act of intentional killing. The last witness on this point is Nand Singh, P. W. 4. On the point as to how the incident actually happened he stated as follows The deceased then stood up and began to tie his turban. Sadhu Singh accused then went out of the chubara taking the gun and bag of cartridges with him. The accused then stood up on the roof of the adjoining room at a distance of 4 or 5 karms from the chubara. Sadhu Singh accused asked would you go. The Mahant emphatically replied Yes. The accused repeated the query and the deceased gave the same answer. The accused said I have number allowed anybody to go away like this in the past. Be prepared then. At the same time the accused leveled his gun at the Mahant and fired a shot hitting the Mahant in the left arm and the left side of the abdominal region. In cross-examination the witness, however, said as follows My statement was recorded by S. Haqiqat Singh A. D. M. Barnala on 16-12-1949. I have number heard the portion marked A to A. I do number remember if I had made this statement or numberOn the day of occurrence we started drinking from the morning. It is incorrect that we started drinking about two hours before the occurrence. I have number heard the portion marked B to B of my previous statement Ex. DD to the effect, We were drinking for about 2 hours preceding the occurrence. I do number know whether I made that statement or number. It is a fact that we started drinking by sunrise. It is companyrect that the accused welcomed the Mahant by touching his knees and saying It is good luck that you have honoured us by your visit. I did number hear him saying Please sit here, I will go and prepare chicken meat for you. I have number heard the portion number marked Ex. D. A./1 of my police statement to the effect Sadhu Singh stood up in order to make arrangements for the meals. He said whether he should prepare chicken meat. The Mahant, however, replied that he should number take the trouble of preparing the chicken meat. Whatever has been companyked in the house shall be acceptable to me. I do number remember if I had made that statement or number. I have number heard the portion marked Ex. D. A/2 of my police statement to the effect I asked Mahant Harbachan Singh to go to my house and be companyfortable there. I also added that we should take some opium on the way from the companytractors shop. I did number make this statement. The truth is that this was said by the Mahant. The accused was wearing the gun in his sling. When the Mahant came to his house. . . . . . . . .During the period the Mahant remained with us, the accused went out of the chubara several times. He also went downstairs several times. I might have stated to the Police that the accused had said Be prepared. I had number allowed anybody to go like this in the past and I shall number allow you to go away. My statement was recorded by S. Mohan Lal, Magistrate 2nd class Under Section 164, Cr. P. C. I had stated to that Magistrate what the accused had said to the deceased before firing. Note The statement under Section 164, Cr. P.C. was read out to the witness and his attention was drawn to this omission . In his statement before the police, Ex. D. A., the version given by this witness is as follows Harbachan Singh returned the small dose of opium and got up and began to tie his turban. He had been sitting opposite to the door of the chubara. Sadhu Singh armed with his gun was strolling outside on the roof of his house. When Mahant Harbachan Singh stood up and began to tie his turban. Sadhu Singh said to him twice would you go number. Saying so Sadhu Singh at once stopped and fired a shot. It is apparent that this witness also tried to exaggerate and made a deliberate effort to improve on the earlier story so that the offence of murder against the accused might be held proved. On a careful reading of the evidence of the eye-witnesses and the different statements that have been made by them it is quite clear that the incident happened in a very short time and suddenly. There was numberprevious enmity between the deceased and the accused. On the other hand, the accused was very respectful to the Mahant and was over-anxious to show all hospitality to him. It seems that he was anxious that the Mahant should number go away from his house without taking meals and spending the night with him, and seeing that the Mahant was going away, in all probability he let go his gun without aiming it at the Mahant in order to prevent him from leaving his place by terrifying him to some extent. It is number possible to believe the embellished version of the witnesses that Sadhu Singh was present at the altercation between his father and the Mahant or that he loaded the gun after he himself had intervened in the altercation, or that there was the companyversation alleged by the witness between him and the Mahant. It also appears that the story that the accused took aim before firing at the Mahant or that he said that he had never allowed in the past anybody to go like that from his house is a subsequent introduction in the case to add gravity to the offence companymitted by the accused. In --Pritam Singh v. The State, , this Court held that it will number grant special leave to appeal under Article 136 1 of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this companyrt does number by special leave companyvert itself into a companyrt to review evidence for a third time. Where, however, the companyrt below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would number be right for this companyrt to affirm such a decision when it occasions a failure of justice. While dealing with this question the High Court made the following significant observations So far as the F.I.R. is companycerned, all that can be said is that it was number stated therein in so many words that the deceased was fired at by the appellant and further that the firing was accidental. As regards the first point, it is numberdoubt true that the F. I. R. does number companytain clear words that Amar Singh saw the appellant firing at the deceased, but reading the document as a whole there can be numberdoubt that it was as a result of the shot fired by the appellant that the deceased was hit and ultimately died. . . . . . . . Then as I have already observed, S. Dara Singh, companynsel for the appellant, has number been able to companyvince us that there is a single difference which goes to the root of the case. The following are the main features of the story That the deceased went to the chubara of the appellant accompanied by Chand Singh and Amar Singh. That the appellant was then present at the chubara and was having a drink party which companysisted of himself, Nand Singh and his father Harnam Singh. That for some time everything went off quite smoothly until the deceased took a bit of opium out of the dabia offered to him by Harnam Singh at the instance of the appellant. The remark made by Harnam Singh was resented by the deceased and he at once got ready to leave the place. That the appellant expressed his annoyance at the companyduct of the deceased in leaving his house so abruptly and his efforts to persuade the deceased to stay on were number successful and That the appellant went out of the chubara with his gun and cartridges and when he thought that the deceased had made up his mind to go away he fired a shot at him. On all these points the testimony of the eye-witnesses is companysistent and unanimous. The only difference between their statements is that they are number all agreed as to the exact stage at which the appellant went out of the chubara and the precise words that he and the deceased exchanged. In my opinion, the differences are number only number material but they can be easily explained. It seems to us that the High Court was in error in thinking that there was number a single difference between the statements made by the witnesses in the first information report and the statements made at the trial, which went to the root of the case. As above pointed out, the whole version as to the nature and character of the act of the accused had been companypletely changed. An act which on the facts stated in the first information report and on the statements made to the police may well be regarded either accidental or rash and negligent, has been deliberately made to look like an act of deliberate murder. If such a difference does number go to the root of the case it is difficult to companyceive what else can fall within that class of cases. We are therefore of the opinion that the High Court was clearly in error in holding that the accused was guilty of the offence of murder under Section 302, I. P. C. On the materials placed on the record it companyld number be held proved that he had any intention of firing at the Mahant. He seems to have pulled the trigger without aiming at the Mahant in a state of intoxication in order to see that by the gun fire the Mahant was prevented from leaving his place. It was a wholly rash and negligent act on his part or at the worst was an act which would amount to manslaughter. |
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 Inter-State Water Disputes Act, 1956, and for a mandamus to the State of Karnataka number to proceed with the companystruction 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 respondents 2 to 5 respectively. In the petition it has been alleged that the petitioners 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 companysiderably diminished due to companystruction 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 equitable 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 political companysideration 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 companyered 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 numbersolution companyld be reached and the problem companytinued. Since we are number on the merits of the matter relating to distribution of waters it is unnecessary to give any details of the further pleadings. 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 maintainability 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 number only supported the companytention 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 number represented though we were told that their stand was companymon 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 numberice 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 petitioners 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 number supported the petitioner entirely and without any reservation and the Court has kept the matter before it for about 7 years, number 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 number 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 number 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 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 number 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 Constitution runs thus Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the companytrol 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 companyplaint with respect to the use, distribution or companytrol of the waters of, or in, any inter-State river or river valley. Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court number any other companyrt shall exercise jurisdiction in respect of any such dispute or companyplaint as is referred to in Clause 1 . It is number disputed before us that the Inter-State Water Disputes Act, 1956 33 of 1956 is a legislation within the meaning of this Article. Section 3 of the Act provides 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 thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by a . . . . . . . . . . . . . . . . . . . . . . b . . . . . . . . . . . . . . . . . . . . . . c . . . . . . . . . . . . . . . . . . . . . . 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 Notwithstanding anything companytained in any other law, neither the Supreme Court number any other companyrt 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 jurisdiction of all companyrts including this Court to entertain adjudication of disputes which are referable to a tribunal under Section 3 of the Act. Therefore, this Court has numberjurisdiction to enter upon the factual aspects raised in the writ petition. No serious dispute, however, has been raised before us challenging our jurisdiction to companysider the claim in the writ petition companyfined 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 numberification in the Official Gazette, companystitute 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 companyditional 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 number. The matter has been pending in this Court for more than 6V2 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 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 center were run by one companymon political party. Perhaps if the center had intervened in an effective way during that period there was companysiderable chance of settlement 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 adjournments 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 insists that the matter should number be further adjourned as several adjournments on the same plea of reconciliation between the two States have number borne any fruit. Learned Solicitor General has told us that in companyrse 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 Pondicherry had been called but that companyld number 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 number be heard on merits in the event numbersettlement takes place by then. A long adjournment of about two months was then granted to provide a further opportunity of negotiation. We have number 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 number take place. When we heard the matter on the 24th of April, 1990, the companynsel for the State of Tamil Nadu in clearest terms indicated that the Chief Minister of the State was number further prepared to join the negotiating table. An affidavit along with the telex message received from Madras supporting its stand has number been made a part of the record. 16. 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 opportunity and time to these two States at the behest of the center 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 Section 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 companynsel for the other parties that the Central Government did number want to undertake any further negotiation and left the matter for disposal by the Court. In these circumstances, we have numberoption but to companyclude 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 numbermore prepared to join the negotiations. We are companynizant of the fact that the matter is a very sensitive one. Judicial numberice can be taken of the fact that the Government at the center is by one political party while the respective Governments in the two States are run by different political parties. The dispute involved is, however, one which affects the southern States of Kerala, Karnataka and Tamil Nadu and the Union Territory of Pondicherry. The disputes of this nature have the potentiality of creating avoidable feelings of bitterness among the peoples of the States companycerned. 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, therefore, on all such occasions take prompt steps to set the Constitutional machinery in motion. Fortunately, the Parliament 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 numberreason, therefore, for the dispute to protract for such a long time. Any further delay in taking the statutorily 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 companystitute 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 companye to the companyclusion that a stage has reached when the Central Government must be held to be of the opinion that the water dispute can numberlonger be settled by negotiation, it thus becomes its obligation to companystitute a Tribunal and refer the dispute to it as stipulated under Section 4 of the Act. |
With CA Nos.461/1997, 4685/1997, 1727/1999, 4602/1999, 6065/2001, CA No./2004 SLP C No. 16851/2001, SLP C Nos.1363/2002, 948/2003, CA Nos.8117-8122/2001, T.C. c No.21-22/2003 IA No.3 in CA 460 of 1997 P. MATHUR,J. The companytroversy raised in these appeals by special leave and Transfer Petitions basically relates to the companypetence of the State Government to fix the State Advised Price for purchase of sugarcane by an occupier of a sugar factory over and above the minimum price fixed by the Central Government. The validity of the procedure adopted for ensuring the payment of the aforesaid price to a sugarcane grower is also under challenge. The power of the State Government to fix higher sugarcane price was recognised in Maharashtra Rajya Sahkari Sakkar Karkhana Sangh Ltd. v. State of Maharashtra Ors. 1995 Supp 3 SCC 475 and in State of M.P. Jaora Sugar Mills Ltd. Ors. 1997 9 SCC 207 it was held that the State Government has an obligation to ensure payment of proper price to the sugarcane growers by occupiers of the factory. However some observations made in State of Tamilnadu Ors. v. Kothari Sugar Chemicals Ltd. Ors. 1996 7 SCC 751 apparently indicate that State Government has numberpower to fix the price. In view of this seeming companyflict, the cases were initially referred for decision by a larger Bench of three Judges and then to a Bench of five Judges. We will first deal with Civil Appeal Nos.460 of 1997, 461 of 1997, 1727 of 1999 and 4602 of 1999 which arise from State of U.P. and are directed against the judgment and orders of two benches of Allahabad High Court wherein companyflicting views have been taken. The Central Government by the order dated 11.3.1996 fixed the statutory premium price of sugarcane payable by the sugar factories for 1996-97 sugar season at Rs.45.90 per quintal linked to a basic recovery of 8.5 per cent sugar subject to a premium of Rs. 0.57 for every 0.1 percentage point increase in the recovery above that level. According to Sugar Mills Association the average minimum statutory price for the whole of U.P. came to about Rs.50.33 per quintal and the additional price under Clause 5-A of Sugarcane Control Order 1966 came to about Rs.7 per quintal and thus they were liable to pay Rs.57.33 per quintal. The State Government by the order dated 15.11.1996 fixed the State Advised Price at Rs.72 per quintal for ordinary quality and Rs.75 per quintal for fast ripening quality of sugarcane to be delivered at the gate of the factory. In case the sugarcane was delivered at the purchase centre the sugar mills were entitled to deduct about Rs.3 per quintal towards transportation companyt. Writ Petition No.36889 of 1996 was filed by West U.P. Sugar Mills Association, Central U.P. Sugar Mills Association, East U.P. Sugar Mills Association and 32 sugar mills for quashing the order dated 15.11.1996 of U.P. Government whereby State Advised Cane Price was fixed and for restraining the respondent authorities State of U.P. and Cane Commissioner U.P. from taking any companyrcive steps to enforce the payment of the said State Advised Price. A declaration was also sought that the writ petitioners are liable to pay only the minimum price fixed by the Central Government under Clause 3 of Sugarcane Control Order 1966 plus the additional cane price determined under Clause 5-A of the said Order. A Division Bench of the High Court allowed the writ petition by the judgment and order dated 11.12.1996. The order of the State Government dated 15.11.1996 was quashed and the respondent authorities were restrained from enforcing the State Advised Price. It was, however, directed that where an agreement in Form B or Form C of the Appendix to the U.P. Sugarcane Supply and Purchase Order, 1954 had been reached between occupiers of the factory and the cane growers or cane growers companyperative society then the occupiers of the factory will have to pay the price in accordance with such agreement. The Cane Commissioner U.P. issued a recovery certificate on 13.2.1997 for recovery of State Advised Sugarcane price from Agota Sugar and Chemicals Ltd. and on the basis of the aforesaid recovery certificate Tehsildar Bulandshahr sent a citation dated 21.2.1997 for recovery of the amount. Agota Sugar and Chemicals Ltd. then filed Writ Petition No. 775 M B of 1997 before the Lucknow Bench of Allahabad High Court for quashing of the aforesaid recovery certificate and the citation. It was also prayed that a writ of mandamus be issued companymanding the Cane Commissioner and authorities of the State Government number to adopt any companyrcive method to recover any amount from it on the basis of the recovery certificate dated 13.2.1997 and the citation dated 21.2.1997. Writ Petition No. 2086 M B 1997 was filed by Shri V.M. Singh, a sugarcane grower, claiming to represent the interest of all the sugarcane growers in the State, praying that the authorities be directed to enforce the payment of State Advised Price for the sugarcane purchased by the sugar mills. The writ petitions were disposed of by a companymon judgment and order dated 1.2.1999. Writ Petition No. 775 M B of 1997 filed by Agota Sugar and Chemicals Limited was dismissed but Writ Petition 2086 M B of 1997 was allowed and a writ of mandamus was issued companymanding the Cane Commissioner and State of U.P. to enforce the payment of State Advised Price for the sugarcane purchased by the sugar mills in the State. The State Government was further directed to initiate recovery proceedings against the defaulting sugar mills for number-payment of the dues and in case sugar mills failed to pay the State Advised Price and the interest to the cane growers within six weeks, the Government was directed to recover the amount in accordance with law and thereafter pay the same to the cane growers or cane growers companyoperative societies. Civil Appeal No. 460 of 1997 has been preferred by U.P. Cooperative Cane Unions Federation and Civil Appeal No.461 of 1997 has been filed by State of U.P. and another against the judgment and order dated 11.12.1996 of Allahabad High Court by which Writ Petition No. 36889 of 1996 was allowed. Civil Appeal No.1727 of 1999 and Civil Appeal No.4602 of 1999 have been preferred against companymon judgment and order dated 1.2.1999 of Lucknow Bench of Allahabad High Court, whereby Writ Petition No.775 M B of 1997 preferred by Agota Sugar and Chemicals was dismissed and Writ Petition No.2086 M B of 1997 preferred by V.M. Singh was allowed. Civil Appeal No.460 of 1997 is being treated as the leading case. Shri Rakesh Dwivedi, learned senior companynsel for the appellant U.P. Co-operative Cane Unions Federation has submitted that the Central Government fixes only the minimum price under Clause 3 1 of Sugarcane Control Order, 1966 hereinafter referred to as 1966 Order and such fixation of minimum price does number exhaust the field of determination of price of sugarcane. In the matter of fixation of price the companycept of minimum price, fair price and maximum price are well known and, therefore, even after fixation of minimum price by the Central Government it is always open for the State Government to fix a higher price for the sugarcane. Learned companynsel has submitted that the State Government can number only fix a higher price but can also advise sugarcane growers and sugar factories to agree at a higher price. The State Government can fix the higher price in exercise of its regulatory power under UP Sugarcane Regulation of Supply and Purchase Act, 1953 hereinafter referred to as 1953 Act . The Sugarcane grower or the sugarcane growers companyoperative society and the occupiers of sugar factories have to companypulsorily enter into an agreement in accordance with UP Sugarcane Supply and Purchase Order, 1954 hereinafter referred to as 1954 Order and the State Government can issue directions for recording of State Advised Price in the agreements which have to be executed for supply of sugarcane. Shri Dwivedi has also urged that parchas are issued to the sugarcane growers and in exercise of the power companyferred by 1953 Act, the State Government can direct that the State Advised Price be recorded in the parchas which are issued to sugarcane growers. Learned companynsel has also submitted that the Central Government does number take into companysideration the various byeproducts like molasses, bagasse and press mud which are produced during the companyrse of production of sugar and the sugar mills make companysiderable amount of money from the sale of aforesaid bye-products especially since molasses has been decontrolled after 1991. The State Government, having regard to the local companyditions and also the amount earned by the sugar factories from the aforesaid bye-products, fixes the price of the sugarcane which is more realistic. Learned companynsel has further submitted that there is numberrepugnancy between the minimum price fixed by the Central Government and the State Advised Price fixed by the State Government and the view to the companytrary taken by the High Court is clearly erroneous in law. Shri P. Chidambaram, learned senior companynsel appearing for the State of U.P. has submitted that there are many facets of price like minimum price, minimum support price, fair price and maximum price. Section 3 of Essential Commodities Act, hereinafter referred to as EC Act empowers the Central Government to make orders for maintaining or increasing supplies of any essential companymodity or for securing their equitable distribution and availability at fair prices or for regulating or prohibiting the production, supply and distribution thereof and trade and companymerce therein. The Central Government has made Sugarcane Control Order, 1966 hereinafter referred to 1966 Order in exercise of the said power and Clause 3 of the Order provides for fixation of minimum price of sugarcane payable by the producer of sugar to the grower of sugarcane. The price is fixed having regard to, inter alia, a the companyt of production of sugarcane b the return to the grower from alternative crops and the general trend of prices of agricultural companymodities and c availability of sugar to the companysumer at a fair price. Learned companynsel has submitted that the main purpose of the 1966 Order, was to ensure that sugarcane supplies are maintained and sugar is available at fair price and, therefore, the order must be companystrued in the companytext of the policy of the Central Government to appropriate a part of the production of sugar mills as levy sugar and sell levy sugar at companytrolled price through the public distribution system ration shops . The statutory minimum price as fixed by the Central Government is basically linked to fixation of the price of levy sugar and is number linked with the actual price of the sugarcane. Hence deliberately the Central Government kept the minimum price of sugarcane at a low level. The additional price payable under clause 5-A of the 1966 Order is factory specific and has company relation only with the profits of the sugar factory and, therefore it is only a matter of chance for a sugarcane grower to get some additional amount. If at all the factory makes profit, the amount paid to a sugarcane grower will be pitiably low or illusory. Learned companynsel has also submitted that sugarcane occupies land for a longer period than any other crop and it needs larger investment in the inputs. The farmers can raise only one crop of sugarcane in a year. Price is the main incentive in any economy and the best incentive to the sugarcane grower is remunerative price for his produce. The minimum price fixed by the Central Government under Clause 3 of 1966 Order is number a remunerative price, as the definition shows that it is only a minimum price. It does number take into account higher companyts and higher risks involved in raising sugarcane. If there is a higher investment and higher risk, the sugarcane grower is entitled to higher return but the said fact is number taken into companysideration while fixing the minimum price by the Central Government. Learned companynsel has submitted that power to fix remunerative price must reside in some authority and therefore such a power must vest with the State Government as the field for the same remains open and unoccupied. Shri Chidambaram has further submitted that 1953 Act has been enacted to regulate the distribution, sale and purchase of cane. Section 16 of this Act empowers the State Government to regulate the distribution, sale or purchase of cane in any reserved or assigned area. The power companyferred under the Act on the State Government is of wide amplitude and takes within its fold the power to determine a remunerative price to the cane grower. The Act number only companyfers power but also casts a duty upon the State Government to ensure that the sugarcane grower gets a remunerative price and he is incentivised to grow sugarcane because the economy of the State to a significant extent is dependent upon growing sugarcane and supplying the same to the sugar factories. Learned companynsel has also urged that the State Government in exercise of its power under the 1953 Act can bring about an agreement between the sugarcane grower or sugarcane growers company operative society and occupiers of a factory satisfying certain terms and companyditions and the price of the sugarcane will be one of the terms thereof. Under the agreements the sugarcane grower is reserved or assigned to a specified sugar mill and is bound to supply number less than 85 per cent of the agreed quantity of sugarcane. He is bound to cut the sugarcane on receipt of a cutting order and in case of number-supply he is liable to pay penalty. If these terms imposed by the Government are valid, then by the same logic the term regarding price is also valid and binding and sugar mills cannot approbate and reprobate the agreement. Learned companynsel has made an alternative submission that even if it is assumed that 1953 Act does number companyfer such a power then Article 162 read with Entry 33 List III of Seventh Schedule of the Constitution companyfers power upon the State Government to fix price by an executive order. In support of this submission reliance has been placed upon certain decisions of this Court rendered in Rai Saheb, Ram Jawaya Kapoor v. State of Punjab 1955 2 SCR 225 Bishambhar Dayal Chandra Mohan Ors. v. State of U.P. 1982 1 SCC 39 and State of Andhra Pradesh v. Lavu Narendranath 1971 1 SCC 607. Lastly learned companynsel has submitted that certain items like molasses, begasse and press mud which are bye-products of sugar industries and which companytribute to the earning of the sugar mills have number been taken into companysideration by the Central Government and, therefore, the price fixed by the State Government which takes into companysideration all the relevant factors and the local companyditions represents the true price which should be upheld. Shri Shanti Bhushan, learned senior companynsel appearing for the respondents sugar factories , has submitted that the main question to be examined is whether the State Government has any statutory power to fix the State Advised Price for sugarcane and to companypel the sugar factories to pay the said price. Learned companynsel has submitted that in exercise of power companyferred by Section 3 of E.C. Act the Central Government has made the 1966 Order, and the Central Government fixes the price of the sugarcane under Clause 3 1 of the said Order. There is numberspecific provision under the 1966 Order, which may empower the State Government to fix the price of sugarcane over and above what has been fixed by the Central Government. Similarly there is numberspecific provision in 1953 Act and the Rules made thereunder which may empower the State Government to fix the price of the sugarcane. Learned companynsel has further submitted that there is clear repugnancy between the price fixed by the Central Government and the price fixed by the State Government and, therefore, it is the price which has been fixed by the Central Government which has to prevail. It has also been companytended that under Section 3 3-C of E.C. Act, the Central Government has to determine the price of levy sugar which a sugar factory is companypelled to sell to the Central Government or the State Government under an order made with reference to Section 3 2 f EC. Act and while determining price of such levy sugar it is only the minimum price of sugarcane fixed by the Central Government which can be taken into companysideration. The fixation of higher price of sugarcane by the State Government would companypletely dislocate the mechanism provided under the C. Act for determination of the price of the levy sugar. Learned companynsel has further submitted that the respondents Sugar Mills Association had sent several letters requesting the State Government number to announce any State Advised Price and within three days of the announcement of the State Advised Price the writ petition was filed. It has thus been urged that in fact there was numberagreement between the sugarcane growers or the sugarcane growers companyoperative society and the occupiers of the sugar factories for payment of State Advised Price. It has also been companytended that even if the price fixed by the State Governments is mentioned in the agreements or in the parchas, the respondents sugar factories cannot be companypelled to pay the said price as they had never given their companysent for recording the State Advised Price in the agreements or in the parchas. In order to companystitute a valid agreement, it is submitted, the companysent of the parties must be voluntarily and must number have been obtained under any duress or companypulsion and since the sugar mills had never voluntarily agreed to pay the State Advised Price, the agreements wherein such a price is recorded is number binding upon them. Shri Sudhir Chandra, learned senior companynsel, appearing for the appellant Agota Sugar and Chemicals Ltd. in CA No. 4602 of 1999 has adopted the argument of Shri Shanti Bhushan. In addition he has submitted that there cannot be any oral agreement regarding the price of the sugarcane between a sugarcane grower or a sugarcane growers companyoperative society and the occupier of the sugar factory as Forms B and C given in Appendix to U.P. Sugarcane Supply and Purchase Order, 1954 clearly companytemplate an agreement in writing. He has further submitted that in the agreements which had been executed between the sugar factory and the sugarcane growers company operative society the State Advised Price had number been recorded and the High Court had misread the same. Before adverting to the companytentions raised at the Bar it is necessary to keep in mind that sugarcane is the main raw material for manufacture of sugar as it is the sugarcane juice which is ultimately companyverted into crystals which becomes a marketable companymodity. Sugarcane, unlike companyl or ore of minerals is number available under the surface of the earth which may be extracted and stored and may be used as and when required. It is a product of agriculture which has to be grown in fields like any other agricultural crop and requires inputs and hard labour for its production and it dries within a short time of its harvesting and becomes virtually useless. The sugar factories do number have an unlimited capacity to crush sugarcane but have a fixed capacity and, therefore, they require fresh sugarcane in a limited quantity everyday during the entire crushing season. Sugar factories in the State of U.P. generally companymence crushing in the month of November and companytinue upto the end of April or sometimes middle of May i.e. for about six months. In order to ensure proper and companytinuous supply of sugarcane to sugar factory throughout the crushing season, the harvesting of crop has to be done in limited quantity according to crushing capacity and requirement of the sugar factory everyday and number in one stretch. In view of this peculiar requirement of sugar factory the position of sugarcane growers becomes entirely different from those who grow other crops like wheat or paddy which can be harvested in one go and can be sold later on at the companyvenience of the farmer at the opportune time. In order to achieve the proper balance viz. to ensure a companytinuous supply of adequate quantity of sugarcane to the sugar factory and proper remuneration to the cane grower for the cane supplied by him, various enactments have been made which we will presently refer to. The Central Legislature initially enacted Sugarcane Act, 1934 and the Statement of Objects and Reasons, amongst others, said that the initiative in the matter of fixing prices for cane must be left to Provincial Governments so as to suit local companyditions. Section 3 of this Act empowered the Provincial Government, by numberification in the official gazette, to declare any area as companytrolled area, to fix a minimum price or minimum prices for the purchase in any companytrolled area of sugarcane intended for use in any factory and to prohibit in any companytrolled area the purchase of sugarcane intended for use in any factory otherwise than from the grower of the sugarcane or from a person licensed to act as a purchasing agent. The purchase of sugarcane intended for use in factory in any companytrolled area at a price less than the minimum price numberified was made an offence under Section 5. Section 7 of the Act companyferred wide powers on the Provincial Government to make rules for the purpose of carrying into effect the objects of the Act. The U.P. Legislature thereafter enacted the U.P. Sugar Factories Control Act, 1938 U.P. Act No.1 of 1938 which repealed the Sugarcane Act, 1934 in its application in the province of U.P. Section 2 a of E.C. Act defines essential companymodities and in view of Section 2 b of the said Act food crops includes crops of sugarcane. The Central Government exercising powers under Section 3 of the E.C. Act made the Sugarcane Control Order, 1955. Clause 3 a of this Order laid down that the Central Government may, after companysultation with such authorities, bodies or associations as it may deem fit, by numberification in the Official Gazette, fix in respect of an area the price or the minimum price to be paid by producers of sugar for sugarcane purchased by him. This order was repealed by the Sugarcane Control Order, 1966 for short 1966 Order and Clause 2 g and i and sub-clauses 1 , 2 , 3 of Clause 3 thereof are being reproduced below 2 g price means the price or the minimum price fixed by the Central Government, from time to time, for sugarcane delivered to a sugar factory at the gate of the factory or at a sugarcane purchasing center or to a khansari unit producer of sugar means a person carrying on the business of manufacturing sugar by vacuum pan process Minimum price of sugarcane payable by producer of sugar 1 The Central Government may, after companysultation with the authorities, bodies or associations as it may deem fit, by numberification in the official Gazette, from time to time, fix the minimum price of sugarcane to be paid by producers of sugar or their agents for the sugarcane purchased by them, having regard to - a the companyt of production of sugarcane b the return to the grower from alternative crops and the general trend of prices of agricultural companymodities c the availability of sugar to the companysumers at a fair price d the price at which sugar produced from sugarcane is sold by producers of sugar and e the recovery of sugar from sugarcane Provided that the Central Government or, with the approval of the Central Government, the State Government, may, in such circumstances and subject to such companyditions as specified in Clause 3-A, allow a suitable rebate in the price so fixed. Explanation 1 Different prices may be fixed for different areas or different qualities or varieties of sugarcane. No person shall sell or agree to sell sugarcane to a producer of sugar or his agent, and numbersuch producer or agent shall purchase or agree to purchase sugarcane, at a price lower than that fixed under sub-clause 1 . Where a producer of sugar purchases any sugarcane from a grower of sugarcane or from a sugarcane growers company operative society, the producer shall, unless there is an agreement in writing to the companytrary between the parties, pay within fourteen days from the date of delivery of sugarcane to the seller or tender to him the price of the cane sold at the rate agreed to between the producer and the sugarcane grower or sugarcane growers companyoperative society or that fixed under sub-clause 1 ,as the case may be, either at the gate of factory or at the cane companylection center or transfer or deposit the necessary amount in the Bank account of the seller or the company operative society, as the case may be. The 1966 Order has been amended several times by the Central Government. Sub-clause 3 of Clause 3 was substituted on 18.5.1968, Clause 3-A relating to rebate that can be deducted from the price paid for the sugarcane was inserted on 24.9.1976 and Clause 5-A was inserted on 25.9.1974. The definition of price given in Clause 2 g shows that it can either be the price or the minimum price fixed by the Central Government. Clause 3 3 deals with payment of the price of the cane sold at the rate agreed to between the producer and the sugarcane grower or sugarcane growers companyoperative society or that fixed under sub-clause 1 as the case may be. Clause 3-A which deals with rebate that can be deducted from the price paid for sugarcane also refers to either the minimum price of sugarcane fixed under Clause 3 or the price agreed to between the producer and the sugarcane grower or the sugarcane growers companyoperative society. So far as the power of the Central Government is companycerned, under Clause 3 1 it can fix only the minimum price of sugarcane to be paid by producers of sugar for the sugarcane purchased by them. This is the lowest permissible rate. The effect of Clause 3 2 is that a producer of sugar can under numbercircumstances purchase sugarcane at a price lower than the minimum price fixed under Clause 3 1 and there is a similar prohibition on the cane grower and he cannot sell or agree to sell sugarcane to a producer of a sugar below the said price. But the 1966 Order, in view of definition of price given in Clause 2 g and also the language used in Clauses 3 and 3-A, clearly companytemplates that there can be a price other than the minimum price of sugarcane fixed under Clause 3 1 , namely, the price agreed to between the producer and the sugarcane grower or the sugarcane growers companyoperative society. Clause 5-A lays down that where a producer of sugar purchases sugarcane from a grower of sugarcane during each sugar year, he shall in addition to the minimum sugarcane price fixed under Clause 3 pay to the sugarcane grower an additional price, if found due in accordance with the provisions of the Second Schedule This additional price is to be calculated in accordance with the formula given in Second Schedule and is dependent upon the value of the sugar produced and the profits made and in effect it is a sharing of profits. Sub-clause 5 of Clause 5-A lays down that numberadditional price determined under sub-clause 2 shall become payable by a producer of sugar who pays a price higher than the minimum sugarcane price fixed under Clause 3 to the sugarcane grower, if the same is number less than the total of the price fixed under Clause 3 1 and additional price determined under Clause 5-A 2 . This provision again companytemplates payment of price higher than the minimum price fixed under Clause 3 1 . A whole reading of the 1966 Order would, therefore, show that the Central Government shall fix the minimum price of sugarcane but there can be a price higher than the minimum price which may be in the nature of agreed price between the producer of sugar and the sugarcane grower or the sugarcane growers companyoperative society. So the field for a price higher than the minimum price is clearly left open in the 1966 Order made by the Central Government. The U.P. legislature enacted the U.P. Sugarcane Regulation of Supply and Purchase Act, 1953 for short the 1953 Act which was published in Gazette on 9.10.1953. Sections 2 a , 2 n , 15 and 16 of this Act read as under- Section 2 a assigned area means an area assigned to a factory under Section 15 Section 2 n Reserved area shall mean the area reserved for a factory under an Order for reservation of Sugarcane areas made under Rule 125-B of the Defence of India Rules, 1962, and when numbersuch order is in force, the area specified in an order made under Section 15. Declaration of reserved area and assigned area 1 Without prejudice to any order made under Clause d of subsection 2 of Section 16, the Cane Commissioner may, after companysulting the Factory and Cane-growers Co-operative Society in the manner to be prescribed a reserve any area hereinafter called the reserved area , and b assign any area hereinafter called an assigned area , for the purposes of the supply of cane to a factory in accordance with the provisions of Section 16 during one or more crushing seasons as may be specified and may likewise at any time cancel such order or alter the boundaries of an area so reserved or assigned. Where any area has been declared as reserved area for a factory, the occupier of such factory shall, if so directed by the Cane Commissioner, purchase all the cane grown in that area, which is offered for sale to the factory. Where any area has been declared as assigned area for a factory, the occupier of such factory shall purchase such quantity of cane grown in that area and offered for sale to the factory, as may be determined by the Cane Commissioner. An appeal shall lie to the State Government against the order of the Cane Commissioner passed under sub-section 1 . Regulation of purchase and supply of cane in the reserved and assigned areas 1 The State Government may, for maintaining supplies, by order, regulate - a the distribution, sale or purchase of any cane in any reserved or assigned area and b purchase of cane in any area other than a reserved or assigned area. Without prejudice to the generality of the foregoing powers such order may provide for - a the quantity of cane to be supplied by each Cane-grower or Cane-growers Cooperative Society in such area to the factory for which the area has so been reserved or assigned b the manner in which cane grown in the reserved area or the assigned area, shall be purchased by the factory for which the area has been so reserved or assigned and the circumstance in which the cane grown by a cane-grower shall number be purchased except through a Cane-growers Co-operative Society c the form and the terms and companyditions of the agreement to be executed by the occupier or manager of the factory for which an area is reserved or assigned for the purchase of cane offered for sale d the circumstances under which permission may be granted for the purchase of cane grown in reserved or assigned area by a Gur, Rab or Khandsari Manufacturing Units or any person or factory other than the factory for which area has been reserved or assigned and for the sale of cane grown in a reserved or assigned area to a Gur, Rab or Khandsari Manufacturing Unit or any person or factory other than the factory for which the area is reserved or assigned e such incidental and companysequential matters as may appear to be necessary or desirable for this purposes. In exercise of the power companyferred by Section 28 of the 1953 Act, the State Government has made U.P. Regulation of Supply and Purchase Rules, 1954 for short the Rules . Rule 21 lays down that the occupier of a factory shall by August 31, each year, apply to the Cane Commissioner in Form I, Appendix III, for the reservation or assignment of an area for supply of cane to the factory during the ensuing crushing season. There is a specific companyumn viz. Item No.6 in Form I Appendix III wherein details of purchases, if any, made at more than the minimum cane price during the last crushing season have to be given. Here the occupier has to fill in the quantity of sugarcane which was purchased at a price more than the minimum price and also the amount of increase over and above the minimum price. Thus payment of higher price and quantum of sugarcane so purchased is a factor which is taken into companysideration while reserving or assigning an area in favour of a sugar factory. Rule 38-A enjoins that at every purchasing centre at least one weighment clerk shall be appointed and deputed by the occupier of a factory who is required to weigh the sugarcane and calculate the cane price companyrectly. Similarly under sub-rule 4 of this Rule the cane growers companyoperative society is required to appoint one society clerk at every purchasing centre who has to carefully watch and check the wieghment of cane and also examine the parcha in which weight and price of cane are recorded. Rule 94 b requires occupier of a factory to put up at each purchasing centre a numberice in Devnagri script, showing the minimum price of cane fixed by Government and also the rates at which cane is being purchased at the centre. Rule 96 1 i j lays down that numberoccupier of a factory shall purchase cane without preparing or causing to be prepared at the purchasing centre a parcha in quadruplicate showing companyrectly the rate at which the sugarcane is purchased and the price that has to be paid for the sugarcane at that rate. Rule 100 requires an occupier of a factory to maintain in respect of each sugarcane grower except in respect of cane purchased through a cane growers companyoperative society a detailed account companytaining several items including the net weight of cane purchased and the rate per quintal paid for sugarcane. In exercise of power companyferred by Section 16 of the Act, the State Government has made UP Sugarcane Regulation of Supply and Purchase Order, 1954 hereinafter referred to as 1954 Order . Clause 3-A of this Order provides for purchase of cane in reserved area and Clause 4 provides for purchase of cane in an assigned area. Clause 3 2 lays down that a cane grower or a cane growers companyoperative society may within 14 days of the issue of an order reserving an area for a factory, offer to supply cane grown in the reserved area to the occupier of the factory in Form A of the Appendix. Clause 3 3 and Clause 4 1 lay down that the occupier of the factory for which an area has been reserved or assigned shall within fourteen days of the receipt of the order enter into an agreement in Form B or Form C of the Appendix, with the cane grower or the cane growers companyoperative society, as the case may be, in respect of the cane offered. Clause 5 1 lays down that cane grown in the reserved or assigned area shall number, except with the permission of the Cane Commissioner, be purchased by any person without the previous issue of requisition slips and identification cards to the growers by the occupier of the factory. Sub-clauses 2 and 3 of Clause 5 mandate that the requisition slips and identification cards to the members of cane growers companyoperative society shall number be issued except by such society and records of the same have to be maintained by the occupier of the factory and also by the cane growers companyoperative society. Clause 5 4 lays down that purchase of cane shall be spread over the entire crushing season in an equitable manner and Clause 5 7 lays down that numberperson shall transfer or abet the transfer of requisition slips for the cane of a grower to another person. The proforma of the agreement regarding sale and purchase of cane which is to be executed between a cane grower and the occupier of a factory is given in Form B and that between cane growers companyoperative society and the occupier of a factory is given in Form C and they mention the terms thereof. Para 1 of Form B companytains the agreement of the sugarcane grower to sell his sugarcane crop giving details of area and approximate yield to the occupier of the factory at the minimum price numberified by the Government and on such dates as may be specified in requisition slips issued by the said occupier. Para 2 provides that the cane shall be taken by the factory in installments equitably spread over the whole working period of factory. Para 3 provides that in the event of willful failure to supply at least 85 per cent of the agreed quantity of sugarcane, the cane grower shall be liable to pay the factory companypensation at the rate number exceeding thirty-three naya paise per quintal on such deficit. Para 4 provides that in case the cane grower willfully fails to supply sugarcane to the factory on three companysecutive occasions according to the requisition made by the factory, he shall cease to have a claim to sell cane to the factory. Para 6 is important and it provides that in the event of a break down at the factory or of other circumstances due to natural causes, calamities, accident beyond human companytrol arising to show that the factory will number be able to purchase the cane it has agreed to purchase, the cane grower, after giving a weeks numberice to the occupier of the factory and with the previous permission of the Cane Commissioner shall have the option of making other arrangements for the disposal of the cane and in such case numbercompensation shall be payable by either party to the other. Form C is the proforma of the agreement which has to be executed between the cane growers companyoperative society and the occupier of a factory regarding sale and purchase of sugarcane. Para 1 of this proforma companytains the agreement of the society to sell sugarcane giving details of the area and the quality to the factory at the minimum price numberified by the Government and the supply has to be made in such quantities and on such dates as may be specified in the requisition slips issued by the occupier. It also companytains a proviso that the price payable by the factory to the society shall number in any case be lower than that paid generally by the factory to other growers of the villages in which companyoperative society operates. The remaining paragraphs of the agreement are almost similar to that of proforma in Form B regarding supply of cane being taken by the factory in installments equitable spread over the whole working period of the factory, companypensation to be paid by society to the factory in the event of deficit and the right of the society to make other arrangements for the disposal of the cane with the previous permission of the Cane Commissioner in the event of break down or happening of other circumstances where under factory is unable to purchase the sugarcane. A sugar factory numbermally runs in shifts for the whole day during the crushing season and it needs a companytinuous supply of freshly harvested sugarcane according to its daily crushing capacity which should be spread over the entire crushing season of about six months. The U.P. Sugarcane Regulation of Supply and Purchase Act, 1953, U.P. Sugarcane Regulation of Supply and Purchase Rules, 1954 and the U.P. Sugarcane Supply and Purchase Order, 1954, have been made to achieve that object. Any shortfall in supply of sugarcane to sugar factory will seriously affect its production resulting in huge losses. Therefore, the first and foremost requirement for the profitable running of the sugar factory is that it should get adequate quantity of sugarcane everyday throughout the crushing season and for ensuring this, a system of reserving or assigning an area in favour of sugar factory has been evolved under Section 15 of the Act. The reservation of an area ensures the supply of the entire sugarcane grown therein to the factory in whose favour it has been reserved. Similarly the assignment of an area ensures the supply of such quantity of sugarcane to the factory in whose favour it has been assigned as may be determined by the Cane Commissioner. Another advantage to the sugar factory is that sugarcane from its reserved or assigned area cannot be sold to any other factory in the vicinity even if it offers a higher price to a grower. This arrangement does number allow the market forces to operate and thereby companypletely avoids companypetition amongst the sugar factories which companyld lead to escalation in prices. It is companymon knowledge that every sugar factory is keen to have the maximum area reserved or assigned for it so that it may get adequate raw material. Sugarcane requires a particular type of soil and climatic companydition and cannot be grown everywhere. The sugar factories are established in the sugar producing belt in close proximity with each other and very often there are companypeting claims for reservation or assignment of an area in their favour. It is for this reason that an appeal is provided under Section 15 4 of the Act against an order made under Section 15 1 of the Act by the Cane Commissioner reserving or assigning an area in favour of sugar factory. Once an area is reserved in favour of a factory the cane grower in the said area or the cane growers companyoperative society operating therein gets tied to that factory and has to companypulsorily enter into an agreement in prescribed proforma Form B or Form C given in the Appendix to 1954 Order. In view of Clause 5 of the said Order cane grown in the reserved or assigned area cannot be purchased by anyone without the previous issue of requisition slips and identification cards to the growers by the occupier of the factory and in the case of members of the cane growers companyoperative society by such society. Since the requisition slips are number-transferable and they are issued by the sugar factory according to its requirement of sugarcane, it thereby companypletely companytrols the purchase of sugarcane from a reserved or assigned area. The terms of the agreement in Form B and Form C are also quite stringent as in the event of failure to supply at least eighty-five per cent of the agreed quantity of sugarcane the cane grower or the cane growers company operative society has to pay companypensation. Even in the event of a break down in the factory or its inability to purchase due to calamities or circumstances beyond human companytrol, the cane grower or the cane growers companyoperative society is number at liberty to make any other arrangement for disposal of cane except after giving a weeks numberice to the factory and obtaining prior permission of the Cane Commissioner. Here too numbercompensation is payable by the factory to the cane grower or the cane growers companyoperative society for the loss which may be suffered on this account. The provisions referred to above have been made for the benefit of the sugar factory so that it is assured of and gets a companytinuous supply of freshly harvested sugarcane in quantity according to its crushing capacity and for the whole duration of the crushing season. No doubt the cane grower also gets some advantage in the sense that purchase of his yield is assured but at the same time many limitations and restrictions are imposed upon him. In view of the aforesaid statutory provisions, the position of a cane grower becomes entirely different from that of a farmer producing any other kind of agricultural crop where there are absolutely numberrestrictions upon him. He is at absolute liberty to harvest his crop at his companyvenience without being dictated by a third party, to sell it to anyone whomsoever he likes and whenever he wants. It is in this scenario, which is number the creation of the cane grower but of the statutory provisions operating in the field, that we have to examine the question whether the State has any authority or power to fix the price of the sugarcane supplied to a producer of sugar sugar factory . The preamble of U.P. Sugarcane Regulation of Supply and Purchase Act, 1953 is an Act to regulate the supply and purchase of sugarcane for use in sugar factories, gur, rab or khandsari sugar manufacturing units. The various provisions of the Act show in unmistakable terms that it regulates the supply and purchase of sugarcane required for use in sugar factories. Regulate means to companytrol or to adjust by rule or to subject to governing principles. It is a word of broad impact having wide meaning companyprehending all facets number only specifically enumerated in the Act, but also embraces within its fold the powers incidental to the regulation envisaged in good faith and its meaning has to be ascertained in the companytext in which it has been used and the purpose of the statute. In State of Tamilnadu v. M s. Hindu Stone Ors. 1981 2 SCC 205 it was held that regulation must receive so wide an amplitude so as to impute prohibition within its fold. It will be useful to reproduce the relevant part of para 10 of the Report wherein this principle was succinctly stated by Chinappa Reddy, J. in following words- We do number think that regulation has that rigidity of meaning as never to take in prohibition. Much depends on the companytext in which the expression is used in the statute and the object sought to be achieved by the companytemplated regulation. It was observed by Mathew, J. in G.K. Krishnan v. State of Tamil Nadu, 1975 1 SCC 375 The word regulation has numberfixed companynotation. Its meaning differs according to the nature of the thing to which it is applied. In modern statutes companycerned as they are with economic and social activities, regulation must, of necessity, receive so wide an interpretation that in certain situations, it must exclude companypetition to the public sector from the private sector. More so in a welfare State. It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Wales, 1949 2 All ER 755 PC and we agree with what was sated therein that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, number so much legal as political, social or economic companysideration and that it companyld number be laid down that in numbercircumstances companyld the exclusion of companypetition so as to create a monopoly, either in a State or Commonwealth agency, be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. The statute with which we are companycerned, the Mines and Minerals Development and Regulation Act, is aimed, as we have already said more than once, at the companyservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of companyservation and prudent exploitation. If you want to companyserve for the future, you must prohibit in the present. We have numberdoubt that the prohibiting of leases in certain cases is part of the regulation companytemplated by Section 15 of the Act. Again in K. Ramanathan v. State of Tamilnadu Anr. 1985 2 SCC 116 it was held that the word regulation cannot have any rigid or inflexible meaning so as to exclude prohibition. It is a word of broad import, having a broad meaning and is very companyprehensive in scope. It was further held that the power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject. It implies the power to rule, direct and companytrol, and involves the adoption of a rule or guiding principle to be followed or the making of a rule with respect to the subject to be regulated. It has different shades of meaning and must take its companyour from the companytext in which it is used having regard to the purpose and object of the legislation. In VSR Oil Mills Vs. State of A.P. AIR 1964 SC 1781 agreements for a period of ten years had been executed for supply of electricity and the same did number companytain any provision authorising the Government to increase the rates during their operation. However the State Government issued orders enhancing the agreed rates exercising power under Section 3 1 of Madras Essential Articles Control Requisitioning Temporary Powers Act, 1949 which reads as under The State Government so far as it appears to them to be necessary or expedient for maintaining, increasing or securing supplies of essential articles or for arranging for their equitable distribution and availability at fair prices may, by numberified order, provide for regulating or prohibiting the supply, distribution and transport of essential articles and trade and companymerce therein. The enhancement in rates was challenged on the ground that any increase in agreed tariff was out of the purview of Section 3 1 . Chief Justice Gajendragadkar, speaking for the Constitution Bench, held as under The word regulate is wide enough to companyfer power on the State to regulate either by increasing the rate or decreasing the rate, the test being what is it that is necessary or expedient to be done to maintain, increase, or secure supply of the essential articles in question and to arrange for its equitable distribution and its availability at fair prices. The companycept of fair prices to which Section 3 1 expressly refers does number mean that the price once fixed must either remain stationary, or must be reduced in order to attract the power to regulate. The power to regulate can be exercised for ensuring the payment of a fair price, and the fixation of a fair price would inevitably depend upon a companysideration of all relevant and economic factors which companytribute to the determination of such a fair price. If the fair price indicated on a dispassionate companysideration of all relevant factors turns out to be higher than the price fixed and prevailing, then the power to regulate the price must necessarily include the power to increase so as to make it fair. Hence the challenge to the validity of orders increasing the agreed tariff rate on the ground that they are outside the purview of Section 3 1 cannot be sustained. In Jiyajeerao Cotton Mills Ltd. Anr. v. Madhya Pradesh Electricity Board Anr. 1989 Suppl 2 SCC 52 the validity of the orders providing for higher charges tariff for electricity companysumed beyond legally fixed limit was upheld in view of Section 22 b of the Electricity Act which permits the State Government to issue an appropriate order for regulating the supply, distribution and companysumption of electricity. It was held that the Court while interpreting the expression regulate must necessarily keep in view the object to be achieved and the mischief sought to be remedied. The necessity for issuing the orders arose out of the scarcity of electricity available to the Board for supplying to its customers and, therefore, in this background the demand for higher charges tariff was held to be a part of a regulatory measure. In Quarry Owners Association v. State of Bihar 2000 8 SCC 655 the question which required companysideration was whether the State Government had the power to fix the rate of royalties in Mines and Minerals Regulation and Development Act, 1957. The Court after taking numbere of the fact that the words regulation of mines and mineral development are incorporated both in the Preamble and the Statement of Objects and Reasons of the Act held that the word regulation may have different meaning in different companytext but companysidering it in relation to the economic and social activities including the development and excavation of mine, the fixation of the rate of royalties would also be included within its meaning. In Deepak Theatre, Dhuri v. State of Punjab Ors. 1992 Supp. 1 SCC 684 while interpreting the Cinemas Regulations Act, 1952 and having regard to the preamble thereto an Act to make provision for regulating exhibition of cinematographs - it was held that classification of seats and fixation of rates of admission according to paying capacity of a cinegoer is also an integral power of regulation and, therefore, fixation of rates of admission became a legitimate ancillary or incidental power in furtherance of the regulation under the Act. The 1953 Act, the Rules and 1954 Order substantially deal with sale and purchase of sugarcane. Section 16 1 provides that the State Government may, for maintaining supplies, by order, regulate sale or purchase of cane in any reserved or assigned area or purchase of cane in area other than a reserved or assigned area. Section 16 2 b of the Act lays down that the order may provide for the manner in which cane grown in a reserved or assigned area shall be purchased by the factory and the circumstances in which cane grown by canegrowers shall number be purchased except through a canegrowers companyperative society. Section 17 enjoins speedy payment of the price of cane purchased by occupier of a factory, payment of interest where default occurs for a period exceeding 15 days from the date of delivery and recovery of amount by the Collector as arrears of land revenue on a certificate issued by the Cane Commissioner. Rule 38- A requires weighment clerk to calculate the cane price companyrectly after weighment of cane and the clerk appointed by the society to examine that the weight and price are companyrectly recorded in the parchas. Rule 96 mandates that cane shall number be purchased at the purchasing centre without preparing a parcha in quadruplicate mentioning amongst others the rate at which the cane is purchased and the price that has to be paid for the same and Rule 100 casts a duty upon the occupier of the factory to maintain separately for each canegrower a companyplete account of several items including the rate per quintal paid for cane. Sugarcane supplied to sugar factory are goods within the meaning of Section 2 7 of Sale of Goods Act. Sub-section 1 of Section 4 of Sale of Goods Act provides that a companytract of sale of goods is a companytract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. Sub-section 3 of the same Section provides that where under a companytract of sale the property in the goods is transferred from the seller to the buyer, the companytract is called a sale, but where the transfer of property in the goods is to take place at a future time or subject to some companyditions thereafter to be specified, the companytract is called an agreement to sell. Section 5 provides that a companytract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. These provisions show that price is an essential element of sale of goods. In Popatlal Shah v. State of Madras 1953 SCR 677 it was held by a Constitution Bench that the expression sale of goods is a companyposite expression companysisting of various ingredients or elements. There are the elements of a bargain or companytract of sale, the payment or promise of payment of price, the delivery of goods and the actual passing of title and each one of them is essential to a transaction of sale though the sale is number companypleted or companycluded unless the purchaser becomes the owner of property. In State of Madras v. Gannon Dunkerley 1958 SCR 379 at page 397 it was observed that according to the law both of England and of India, in order to companystitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to the goods which, of companyrse, presupposes capacity to companytract, that it must be supported by money companysideration and that as a result of the transaction property must actually pass in the goods. Unless all these elements are present, there can be numbersale. The law is, therefore, well settled that in a matter relating to sale of movable property or goods, price is an essential element of the transaction. 26 The Preamble of the 1953 Act says An Act to regulate the supply and purchase of sugarcane required for use in sugar factories The provisions of the Act referred to above also show that the legislature has made very elaborate provisions regarding supply of sugarcane by canegrowers, its purchase by the sugar factories and payment of price thereof. In fact, very detailed and exhaustive provisions have been made in the Rules and the 1954 Order to ensure that at the time of delivery of sugarcane by the canegrowers, its weight and price is companyrectly recorded and the price is paid to them within 14 days, failing which sugar factory is liable to pay interest. In such circumstances, the irresistible companyclusion which can be drawn is that the regulatory power possessed by the State Government shall also include the power to fix the price of the sugarcane. If it is held that the State under its power of regulation cannot fix the price, then the statutory provision companytained in the 1953 Act, the Rules and 1954 Order will become companypletely one sided, operating entirely for the benefit of sugar factories giving them many advantages with numbercorresponding obligations and leaving the canegrorwer in a lurch with host of restrictions upon him. This can never be the intention of the Legislature. It will number be fair to read the Act and the Rules in such a restrictive manner, whereby the provisions made for the benefit of the canegrowers become wholly illusory. It has been urged by learned companynsel for respondents that the expression at the minimum price numberified by Government used in the proforma of the agreement which is to be executed between a canegrower and the occupier of the factory as given in Form B and that which is to be executed between a canegrowers companyperative society and the occupier of the factory as given in Form C in the appendix to 1954 Order indicates that it is only the minimum price fixed by the Central Government which can be the companysideration or price for the sale of sugarcane to the sugar factory. Strong reliance in support of this submission has been placed upon certain observations made by this Court in Ch. Tika Ramji Ors. v. State of Uttar Pradesh Ors., 1956 SCR 393. The proforma of agreement viz. Forms B and C are companytained in the appendix to U.P. Sugarcane Supply and Purchase Order, 1954. This Order has been made by U.P. Government in exercise of the power companyferred by Section 16 of the 1953 Act, which provides that the State Government may for maintaining supplies by Order regulate the distribution, sale or purchase of cane in any reserved or assigned area, etc. The Order having been made by the State Government in exercise of a power companyferred by an Act made by U.P. legislature, the only logical inference which can be drawn is that the word Government refers to State Government. There is numberindication in the proforma of the agreement or in the 1954 Order that the word Government would refer to Central Government. If the State Government is prescribing a proforma of an agreement which is to be executed by a canegrower or a canegrowers companyperative society and the occupier of the factory regarding sale and purchase of sugarcane wherein the word Government is used, it can only mean the State Government and number the Central Government unless there is clear indication to the companytrary. The observations made in Tika Ramji supra , strong reliance on which is placed by learned companynsel for the respondents, have to be understood in the companytext in which they were made. It may be numbered that the writ petitions in the said case were filed in this Court in the year 1954 and the judgment was delivered on 24.4.1956. At the relevant time, it was the Sugarcane Control Order, 1955 which was in operation. Clause 3 of this Order empowered the Central Government to fix the price or the minimum price to be paid by a producer of sugar for sugarcane purchased by him. The 1955 Order has been repealed by Sugarcane Control Order, 1966 and Clause 3 of this Order provides that the Central Government may fix the minimum price of sugarcane to be paid by producers of sugar. There is a difference between the price which is a fixed amount and the minimum price which only indicates the lowest permissible rate. The 1966 Order which itself was made by the Central Government more than a decade after the judgment was rendered in Tika Ramji was amended in 1978 and Clauses 3 3 and 3-A thereof companytemplate an agreed price which in view of the mandate of Clause 3 2 is bound to be higher than the minimum price fixed under Clause 3 1 . Naturally it is this agreed price which is to be mentioned in the agreements for sale and purchase of sugarcane in Forms B and C otherwise the very purpose of entering into agreements would be defeated. The State Government had number fixed any price for the sugarcane under its regulatory power by the time Tika Ramji supra was decided by this Court in April, 1956 and only the Central Government had taken a step for fixing the price. It was in these circumstances that it was observed that the price fixed by the Government would mean the Central Government. The observations relied upon by the learned companynsel for the respondents were made while companysidering the question whether there was any repugnancy between the provisions of the Sugarcane Control Order 1955 and the 1953 Act, the Rules and 1954 Order and they should be understood in that companytext. The relevant portion of the judgment on page 434 is being reproduced below The price of cane fixed by Government here only meant the price fixed by the appropriate Government which would be the Central Government, under clause 3 of the Sugarcane Control Order, 1955, because in fact the U.P. State Government never fixed the price of sugarcane to be purchased by the factories. Even the provisions in behalf of the agreements companytained in clauses 3 and 4 of the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, provided that the price was to be the minimum price to be numberified by the Government subject to such deductions, if any, as may be numberified by the Government from time to time meaning thereby the Central Government, the State Government number having made any provision in that behalf at any time whatever. The provisions thus made by the Sugarcane Control Order, 1955, did number find their place either in the impugned Act or the Rules made thereunder or the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 and the provision companytained in Section 17 of the impugned Act in regard to the payment of sugarcane price and recovery thereof as if it was an arrear of land revenue did number find its place in the Sugarcane Control Order, 1955. Having regard to the factual situation then existing that U.P. Government had number fixed the price of the sugarcane, it was held that the price of the cane fixed by the Government companyld only mean Central Government. It has number been laid down as a principle of law that the words minimum price numberified by Government must necessarily mean the minimum price fixed by the Central Government or that under numbercircumstances it can mean the price fixed by the State Government. Learned companynsel for the respondent has also submitted that in order to companystitute a valid agreement, the companysent of the parties thereto should be a voluntary companysent and number a companysent obtained under any kind of companypulsion or duress. It has been submitted that after the State Government makes an announcement of a State Advised Price, the occupiers of the sugar factories are companypelled to enter into agreements with the canegrowers and canegrowers companyperative societies in Forms B and C, wherein the State Advised Price is mentioned. The same price is also mentioned in the parchas issued to the canegrowers. It has been urged that the sugar factories cannot be companypelled to pay such State Advised Price even though it may have been mentioned in the Forms or in the parchas. It is number possible to accept the companytention raised. As discussed earlier, the State Government in exercise of its regulatory power can fix the price of the sugarcane. The mere fact that this price is number to the liking of the sugar factory does number mean that it cannot form the basis for supply of sugarcane by the canegrowers or canegrowers companyperative society to the sugar factory. It is well settled that even a companypulsory sale does number lose the character of a sale. This question has been examined in companysiderable detail by a Constitution Bench in Indian Steel Wire Products Ltd. v. State of Madras, 1968 1 SCR 479. The appellant in this case supplied certain steel products to various persons at the instance of the Steel Controller, who exercised powers under the Iron and Steel Control of Production Distribution Order, 1941, which was issued under the Defence of India Act, 1939. The appellant challenged the assessment of sales tax made on its turnover under Madras General Sales Tax Act. The companytention of the appellant was that it was the Controller who determined the persons to whom the goods were to be supplied, the price at which they were to be supplied, the manner in which they were to be transported and the mode in which payment of price was to be made. In short it was said that every facet of the transaction was prescribed by the Controller and, therefore, they companyld number be companysidered as sales. Sub-clause 1 of Clause 11-B of the Control Order provided that the Controller may, by numberification in the Gazette, fix the maximum price at which any iron or steel may be sold and Sub-clause 3 of the same clause provided that numberproducer or stockholder shall sell or offer for sale and numberperson shall acquire any iron or steel at a price exceeding the maximum price fixed under Sub-clause 1 or 2 . After review of number of authorities, the Court held as under For the reasons already stated, we are unable to accept the companytention that the transactions with which we are companycerned in these cases are number sales. Out of the four elements mentioned earlier, three were admittedly established, namely, the parties were companypetent to companytract, the property in the goods was transferred from the seller to the buyer, and price in money was paid. The only companytroversy was whether there was mutual assent. Our finding is that there was mutual assent in several respects. Hence, we agree with the High Court that the transactions before us are sales. In Andhra Sugar Mills Ltd. v. State of Andhra Pradesh, 1968 1 SCR 705, the question of companypulsion by law to enter into an agreement was companysidered by a Constitution Bench. Under the Andhra Pradesh Regulation of Supply and Purchase Act, 1961, the occupier of a sugar factory had to buy sugarcane from canegrowers in companyformity with the directions from the Cane Commissioner. Under Section 21 of the aforesaid Act, the State Government had power by numberification to tax purchasers of sugarcane for use, companysumption or sale in a sugar factory and the tax was leviable subject to a maximum rate per metric ton. The petitioner sugar factories filed writ petitions under Article 32 of the Constitution challenging the validity of Section 21 mainly on the ground that as the petitioners were companypelled by law to buy cane from canegrowers, their purchases were number made under agreements and were number taxable under Entry 54 List II having regard to Gannon Dunkerleys case. The companytention was repelled after a thorough analysis of the legal position and the following observations on page 711 of the Report show that the challenge raised by the respondents here has numbersubstance Under Section 4 1 of the Indian Sale of Goods Act, 1930, a companytract of sale of goods is a companytract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. By Section 3 of this Act, the provisions of the Indian Contract Act, 1872 apply to companytracts of sale of goods save in so far as they are inconsistent with the express provisions of the later Act. Section 2 of the Indian Contract Act provides that when one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of the other to such act or abstinence, he is said to make a proposal. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise. Every promise and every set of promises forming the companysideration for each other is an agreement. There is mutual assent to the proposal when the proposal is accepted and in the result an agreement is formed. Under Section 10, all agreements are companytracts if they are made by the free companysent of parties companypetent to companytract for a lawful companysideration and with a lawful object and are number by the Act expressly declared to be void. Section 13 defines companysent. Two or more persons are said to companysent when they agree upon the same thing in the same sense. Section 14 defines free companysent. Consent is said to be free when it is number caused by companyrcion, undue influence, fraud, misrepresentation or mistake as defined in Sections 15 to Now, under Act No.45 of 1961 and the Rules framed under it, the cane grower in the factory zone is free to make or number to make an offer of sale of cane to the occupier of the factory. But if he makes an offer, the occupier of the factory is bound to accept it. The resulting agreement is recorded in writing and is signed by the parties. The companysent of the occupier of the factory to the agreement is number caused by companyrcion, undue influence, fraud, misrepresentation or mistake. His companysent is free as defined in Section 14 of the Indian Contract Act though he is obliged by law to enter into the agreement. The companypulsion of law is number companyrcion as defined in Section 15 of the Act. In spite of the companypulsion the agreement is neither void number voidable. In the eye of the law, the agreement is freely made. The parties are companypetent to companytract. The agreement is made for a lawful companysideration and with a lawful object and is number void under any provisions of law. The agreements are enforceable by law and are companytracts of sale of sugarcane as defined in Section 4 of the Indian Sale of Goods Act. The purchases of sugarcane under the agreement can be taxed by the State legislature under Entry 54 List II. Again at page 712, the Court made the following observation It is number realised that in the public interest, persons exercising certain callings or having monopoly or near monopoly powers should sometimes be charged with the duty to serve the public and, if necessary, to enter into companytracts. Thus, Section 66 of the Indian Railways Act, 1890 companypels the railway administration to supply the public with tickets for travelling on the railway upon payment of the usual fare. Section 22 of the Indian Electricity Act, 1910 companypels a licensee to supply electrical energy to every person in the area of supply on the usual terms and companyditions. Cheshire and Fifoot in their Law of Contract, 6th Edn. p. 23 observe that for reasons of social security the State may companypel persons to make companytracts. One of the objects of Act No.45 of 1961 is to regulate the purchase of sugarcane by the factory owners from the canegrowers. The canegrowers scattered in the villages had numberreal bargaining power. The factory owners or their companybines enjoyed a near monopoly of buying and companyld dictate their own terms. In this unequal companytest between the canegrowers and the factory owners, the law stepped in and companypelled the factory to enter into companytracts of purchase of cane offered by the canegrowers on prescribed terms and companyditions. A similar question was examined by a Bench of Seven Judges in Salar Jung Sugar Mills Ltd. v. State of Mysore Ors., 1971 1 SCC 23. The companytention was that there was numbermutual assent by and between the sugar mills and the growers of the sugarcane and, therefore, there was numberpurchase or sale of sugarcane and companysequently numbertax under Mysore Sales Tax Act companyld be levied. It was held that Statutory Orders regulating the supply and distribution of goods by and between the parties under Control Orders in a State do number absolutely impinge on the freedom to enter into companytract. Legislative measures or statutory provisions fixing the price, delivery, supply, restricting areas for transactions are all within the realm of planning economic needs, ensuring production and distribution of essential companymodities and basic necessities of companymunity. The individual freedom is to be reconciled with adequate performance by the Government of its functions in a highly organized society. In para 44 of the Reports it was held as under The parties choose the term of delivery. They have choice of obtaining a supply exceeding 95 of the yield. They can stipulate for a price higher than the minimum. They can have terms for payment in advance as well as in cash. A grower may number cultivate and may number have any yield. A factory may be closed or wound up, and may number buy any sugarcane. A factory can reject goods on inspection. A companybination of all these features indicate that the parties entered into agreements with mutual assent and with volition for transfer of goods in companysideration of price. The transactions amount to sales within the meaning of the Mysore Sales Tax Act. In Sukhnandan Saran Dinesh Kumar v. Union of India Ors., 1982 SCC 150, after companysidering the provisions of 1966 Order and 1953 Act made by U.P. Legislature the Court clearly ruled that in order to protect the sugarcane growers who are number in a position to negotiate, the Government can prescribe terms in a companytract which they have to enter into with the occupiers of sugar factories. After elaborate discussion of the relevant provisions, the Court expressed its view in following words in para 22 of the Reports The proposition is number beyond the pale of companytroversy that the State can impose a restriction in the interest of general public on the right of a party to companytract where in the opinion of the Government the companytracting parties are unable to negotiate on the footing of equality. Constitutional validity of statutes prescribing minimum wages has been founded on this proposition. The principle can be effectively extended to the powerful sugar industry and the cane growers because the cane growers admittedly are at a companyparative disadvantage to the producers of sugar and khandsari sugar who were described in the companyrse of arguments as sugar barons. It does number require an elaborate discussion to reach an affirmative companyclusion that sugarcane growers who are farmers cannot negotiate on the footing of the equality with the producers of sugar and khandsari sugar. The State action for the protection of the weaker sections is number only justified but absolutely necessary unless the restriction imposed is excessive As discussed earlier, the reservation or assignment of area is made for the benefit of a sugar factory. The agreements executed by the canegrowers or canegrowers companyperative society in favour of occupier of a factory are also for the benefit of the sugar factory as by such agreements it gets an assurance of a companytinuous supply of freshly harvested sugarcane on the days indicated in the requisition slips issued by it so that there may number be any problem in getting optimum quantity of raw material throughout the crushing season. In absence of the agreements the sugar factory will also be a loser as it may face great problem in getting the supply of sugarcane according to its requirement. The occupiers of the factory are themselves keen for execution of the agreements but their only objection is to the mention of State Advised Price. The agreement is one companyposite transaction and it is number open to them to companytend that the terms thereof which are to their advantage should be enforced but the term relating to price numberified by the State Government should number be enforced as their companysent in that regard was number a voluntary act. In our opinion, having regard to the advantages derived by the sugar factories, they are fully bound by the agreement wherein the State Advised Price may be mentioned and it is number open to them to assail the clause relating to price of the sugarcane on the ground that their companysent was number voluntary or was obtained under some kind of duress. Learned senior companynsel for the respondents has strenuously urged that the Central Government having made the 1966 Order which companytains a specific provision for fixation of price of sugarcane, under Clause 3 1 thereof, the regulatory power under the 1953 Act cannot embrace within its fold the same power of fixation of price as this will be clearly repugnant to a law made by the Parliament and would be void in view of Article 254 1 of the Constitution. In Ch. Tika Ramji supra it has been held that the E.C. Act under which the Central Government made the 1966 Order and the 1953 Act made by U.P. Legislature have been enacted with reference to Entry 33 of List III of the Seventh Schedule. The companystitutional validity of the 1953 Act was upheld by the Constitution Bench in the said decision. On page 437 of the Reports the Court quoted with approval the following passage from the judgment of Sulaiman J. in Shyamakant Lal Vs. Rambhajan Singh 1939 FCR 188 at 212 for the principle of companystruction in regard to repugnancy When the question is whether a Provincial legislation is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and companystrue both so as to avoid their being repugnant to each other and care should be taken to see whether the two do number really operate in different fields without encroachment. Further, repugnancy must exist in fact, and number depend merely on a possibility. And then went to hold In the instant case, there is numberquestion of any inconsistency in the actual terms of the Acts enacted by Parliament and the impugned Act. The only questions that arise are whether Parliament and the State Legislature sought to exercise their powers over the same subject-matter or whether the laws enacted by Parliament were intended to be a companyplete exhaustive companye or, in other words, expressly or impliedly evinced an intention to companyer the whole field. In M. Karunanidhi v. Union of India, AIR 1979 SC 898, the principles to be applied for determining repugnancy between a law made by Parliament and law made by State legislature were companysidered by a Constitution Bench. In pursuance of an FIR lodged against Shri M. Karunanidhi the CBI after investigation had submitted chargesheet against him under Section 161, 468 and 471 IPC and Section 5 2 read with Section 5 1 d of the Prevention of Corruption Act. The Madras Legislature had passed an Act known as Tamil Nadu Public Men Criminal Misconduct Act, 1973 which had received the assent of the President. It was companytended that by virtue of Article 254 2 of the Constitution, the provisions of Indian Penal Code, Prevention of Corruption Act and Criminal Law Amendment Act stood repealed. After review of all the earlier authorities Court laid down the following tests That in order to decide the question of repugnancy it must be shown that the two enactments companytain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. That there can be numberrepeal by implication unless the inconsistency appears on the face of the two statutes. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without companying into companylision with each other, numberrepugnancy results. That where there is numberinconsistency but a statute occupying the same field seeks to create distinct and separate offences, numberquestion of repugnancy arises and both the statutes companytinue to operate in the same field. The same question was examined in companysiderable detail in M s Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019 and it was held that one of the occasion where inconsistency or repugnancy arose was when on the same subject matter one would be repugnant to the other and, therefore, in order to raise a question of repugnancy, two companyditions must be fulfilled. The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other and these are cumulative companyditions. In National Engineering Industries Ltd. v. Sri Kishan Bhageria Ors., AIR 1988 SC 329, Sabyasachi Mukharji, J. opined that the best test of repugnancy is that if one prevails, the other cannot prevail. In S. Satyapal Reddy Ors. v. Govt. of A.P. Ors., 1994 4 SCC 391, the question was examined in the companytext of prescription of a higher qualification by the State Government. The service rule made by the Central Government prescribed a diploma in Mechanical Engineering as the minimum qualification for appointment on the post of Assistant Motor Vehicles Inspector while the rule made by the State Government required a degree in Mechanical Engineering or certain other alternative qualifications. The challenge made by the diploma holders was negatived and it was held that prescribing a higher qualification did number give rise to any inconsistency or repugnancy as both the rules companyld operate harmoniously and effect companyld be given to both of them. Similarly, in Dr. Preeti Srivastava v. State of P. Ors, 1999 7 SCC 120, it was held that laying down higher eligibility qualification by the State Government for admission to Post Graduate Medical Courses did number lead to any kind of repugnancy. Under Sub-section 1 of Clause 3 of the 1966 Order, the Central Government can only fix a minimum price of sugarcane. This clause should be read along with Sub-clause 2 which creates an embargo or prohibition that numberperson shall sell or agree to sell sugarcane to a producer of sugar and numbersuch producer shall purchase or agree to purchase sugarcane at a price lower than that fixed under Sub-clause 1 . The inconsistency or repugnancy will arise if the State Government fixed a price which is lower than that fixed by the Central Government. But, if the price fixed by the State Government is higher than that fixed by the Central Government, there will be numberoccasion for any inconsistency or repugnancy as it is possible for both the orders to operate simultaneously and to companyply with both of them. A higher price fixed by the State Government would automatically companyply with the provisions of Sub-clause 2 of Clause 3 of 1966 Order. Therefore, any price fixed by the State Government which is higher than that fixed by the Central Government cannot lead to any kind of repugnancy. The decisions of this Court touching the companytroversy in hand may number be examined. In Maharashtra Rajya Sahkari Sakkar Karkhana Sangh Ltd. Ors. v. State of Maharashtra Ors. 1995 Supp. 3 SCC 475 paras 11, 12, 21 , R.M. Sahai, J. speaking for a Three Judge Bench held that the entire process of price fixation can be divided into three stages. The first is the fixation of what is known as the minimum ex-factory price by the Central Government under 1966 Order for all the sugar factories in the companyntry linking it with basic recovery of 8.5 per cent with a proportionate increase for every 0.1 per cent extra recovery. The second is the State Advised Price and every State has its own method to determine it. The power is assumed under the Acts of the State Legislature or Orders issued by the Government and in State of U.P. it is done by Orders issued under the U.P. Sugarcane Regulation of Supply and Purchase Act, 1953. The third is the price paid at the end of the season. The Bhargava Commission had recommended the payment of additional price at the end of the season on 50-50 profit sharing basis between growers and factories to be worked out in accordance with Second Schedule to the 1966 Order. In paragraph 21, it was observed as under The price is fixed, may be, by the Board of Directors or by the State Government under bye-laws but the prices are for the reserved area. The Central Government did number fix any maximum price obviously because the companyditions in the agricultural sector differed from State to State. Therefore, it having fixed a minimum price expects the State to offer remunerative price to its cultivators. In a companytrolled economy the price fixation machinery is to be determined by the State Government or under the 1966 Order in the manner provided therein. Since in Maharashtra 95 of the sugar factories are in the companyperative sector the price is fixed by the Government as it has substantial financial stake. But so long the price fixation does number suffer from any infirmity or it is held to be prejudicial to the cane-growers so as to benefit the State or the financial institution it cannot be held to be bad The next is State of M.P. v. Jaora Sugar Mills Ltd. Ors., 1997 9 SCC 207, which has been decided by a Bench of two judges. The dispute arose on account of fixation of price under the M.P. Sugar Regulation of Supply and Purchase Act, 1958. The companytention on behalf of the sugar factories was that Clauses 3 and 5-A of the 1966 Order determine the liability to pay the price and additional price and the Central Government having determined the price of the sugarcane under the aforesaid Order, there is numberpower with the State Government de hors the Order to fix any agreed price. The companycept of agreed price came into force on 19.9.1976 by virtue of Clause 3-A of the said Order and until then there was numberpower to fix an agreed price. It was also urged that the State Government has, therefore, numberpower under the Act to fix any price as the field was occupied by the 1966 Order. The companytention was, however, number accepted and after numbericing the provisions of Clauses 3 2 and 3 3 , it was held as under in para 8 of the Reports This would clearly indicate that despite the fixation of minimum price under clause 3 1 , by agreement between the sugarcane grower and the purchaser of the sugarcane, they would be at liberty to agree to sell or purchase the sugarcane at a higher price than that fixed by the Central Government under clause 3 1 . Only for postponement of payment beyond 14 days, there should be an agreement in writing between the parties obviously with the companycurrence of the Central Government or authorised authority in that behalf. Thus, there is numberstatutory prohibition in that behalf to pay higher price. That would be further clear by clause 3 2 which speaks of the companytract between the parties for payment of higher price of sugarcane fixed under sub-clause 1 of clause 3 pursuant to the agreement or pursuant to the minimum price fixed by the Central Government under clause 3 1 of the Order. It was observed in paras 9 and 10 that there was numberprohibition for the canegrowers and occupiers of the sugar factories in entering into oral agreement through the service of the Cane Commissioner, a statutory authority, who companyld effect such an agreement. The agreement would number be tainted with companypulsion but in numberation of the minimum price fixed under the 1966 Order. After numbericing the provisions of the M.P. Act, which are some what similar to U.P. Act, it was held as under in para 13 of the Reports It would thus be clear that the Cane Commissioner having power to companypel the cane-growers to supply cane to the factory or khandsari unit, he has incidental power and is duty bound to ensure payment of the price of the sugarcane supplied by the sugarcane grower. The price fixed or agreed is a statutory price and bears the stamp of statutory first charge on the sugar and assets of the factory over any other companytracted liabilities to recover the price of the sugarcane supplied to the factory or khandsari unit. SKG Sugar Ltd. v. State of Bihar 1997 9 SCC 362 is a decision by the Bench of three judges and deals with the effect of 1966 Control Order and the Bihar Sugarcane Regulation of Supply and Purchase Act, 1981. It was clearly ruled that the provisions of 1966 Order do number show that there is any prohibition on the factory or the association of factories entering into an agreement to pay higher price than the minimum price prescribed under the Order and the object of the Order is to ensure that the canegrowers should number be companypelled to sell their sugarcane at a price lower than the minimum price fixed by the Central Government under Clause 3. In this case an agreement had been arrived at between Sugar Factories Owners Association and sugarcane growers, wherein a higher price was agreed to be paid but this was sought to be resiled by the appellant on the ground that it was a Company, which was an independent entity in the eye of law and was, therefore, number bound by any such agreement. After numbericing the provisions of the Act and the earlier decision rendered in State of M.P. v. Jaora Sugar Mills Ltd. supra it was held as under in para 6 of the reports It is number in dispute that under Section 31 of the Supply Act, the State Government has power to fix the reserved area, in other words, zone was carved out for the appellant for the supply of sugarcane to the factory. All the farmers who are cultivating sugarcane within that zone are bound by the State action to supply sugarcane to the factories within that reserved area. Consequently, the factory also is bound by the actions of the State Government. Obviously, pursuant to the obligation had by the State under the Supply Act, the meeting was companyvened by the State Government where at the Factory Owners Association and farmers participated and agreed to fix the price at Rs.20.50 per quintal of sugarcane. As a companysequence, both the cane growers as well as the owners of the factory are bound by the decision. This having been agreed upon, the price fixed by the State Government in excess of the minimum price fixed by the Central Government under clause 3 of the Order would be the price fixed for supply of sugarcane and the Government would be entitled to enforce the liability It was also observed in the same paragraph that the State Government acted in their statutory capacity to fix the higher price of the sugarcane. These cases clearly lay down that under the 1966 Order the Central Government only fixes the minimum price and it is always open to the State Government to fix a higher price. Under the enactments made by the State Legislatures areas are reserved for the sugar factories and the canegrowers therein are companypelled to supply sugarcane to them and therefore the State Government has incidental power to fix the price of sugarcane which will also be statutory price. They further lay down that the Cane Commissioner can direct the canegrowers and the sugar factories to enter into agreements for purchase of sugarcane at a price fixed by the State Government and such agreements cannot be branded as having been obtained by force or companypulsion. Learned senior companynsel for the respondents has placed strong reliance on certain observations made in State of Tamil Nadu v. Kothari Sugars and Chemicals Ltd., 1996 7 SCC 751, which is a decision by a Bench of two judges. In our opinion, this decision can be of numberassistance to the respondents as the point for companysideration here was entirely different, which will be evident from paras 1 and 3 of the judgment which read as under Para 1. The question for decision is Whether for the purchase of sugarcane from the canegrowers, a purchaser is liable to pay purchase tax under the State Sales Tax Act on the amount paid by the purchaser to the canegrower over and above the price fixed under clauses 3 and 5-A of the Sugarcane Control Order, 1966 ? Para 3. The occasion for payment by the purchaser of the amount in excess of the aggregate of the minimum cane price and the additional cane price so fixed, arises on account of an order of the State Government dated 15.11.1980 purporting to fix a higher revised minimum cane price and directing the sugar factories in Tamil Nadu to pay that price to the canegrowers. Pursuant to the direction, each sugar factory was directed to make that payment and in companypliance thereof this sugar factory paid the excess amount as an advance described as under being advance payment towards cane supply during 1980-81 season, against probable additional cane price under Section 5-A of the Sugarcane Control Order, 1966. It is important to numbere that in Tamil Nadu there is numberstatutory provision for regulating the supply and purchase of sugarcane for use in sugar factories or khandsari sugar manufacturing units. Therefore, the order of the State Government dated 15.11.1980 fixing higher revised minimum cane price had number been issued in exercise of any statutory power. In para 6 of the Reports, the Court observed that unless there be an agreement between the grower and the purchaser for purchase of the sugarcane at higher price, the obligation of the purchaser is to pay the grower only the aggregate of the amounts fixed under clauses 3 and 5-A. It was further observed that without any companytractual or statutory basis fixing the sale price of sugarcane at an amount higher than the minimum cane price fixed under Clause 3 and the additional cane price fixed under Clause 5-A, any sum paid by the purchaser to the grower as advance prior to fixation of the additional cane price under Clause 5-A cannot form part of the price of sugarcane. It was pointed out in para 7 that the State advice to the purchasers to pay certain amount in addition to the minimum price fixed under Clause 3 in anticipation of fixation of the additional cane price under Clause 5-A, does number have any statutory basis. The amount of advance was paid in anticipation of fixation of additional cane price under Clause 5-A, which means that in case the fixation under Clause 5-A was at a higher amount than the amount paid as advance, then the purchaser would have to pay the deficit amount. Similarly, when the amount of advance was in excess, the purchaser would be entitled to refund of the excess amount, irrespective of the fact that whether the refund was actually made or number. Any amount paid by way of advance towards a probable additional price to be worked out in accordance with the formula given in the 1966 Order companyld number be treated as price of sugarcane for the purpose of levy of sales tax. In fact in para 9 of the reports it was observed that for treating the entire amount paid by the purchaser as the price of the sugarcane supplied, it must be found proved as a fact that the higher price including the excess amount was paid as the price of sugarcane under an agreement between the grower and the purchaser irrespective of a lower amount being fixed as an aggregate of the price fixed under Clauses 3 and 5-A of the 1966 Order. It was further held that unless a clear finding to that effect is recorded, the amount paid by the purchaser in excess of the aggregate of the minimum price fixed under Clause 3 and the additional price fixed under Clause 5-A, as part of the amount paid in advance prior to the fixation of the additional price under Clause 5-A, cannot be treated automatically as a part of the total price of the sugarcane. The question in issue here did number companye up for companysideration before the Bench and some general observations made in the companyrse of the reasoning given in a matter dealing with liability to pay tax on some amount which was paid by sugar factory as advance towards the probable additional cane price under Clause 5-A cannot be companystrued as an expression of opinion on the merits of the matter. It is well settled that a decision is an authority for what it actually decides and number what logically flows from it. Every observation of Court are number to be interpreted or used like provisions of Statute as if they were part of an Act. It is, therefore, number possible to hold that the Court laid down any principle of law that it is number open to the State to fix higher price or that there companyld be numberagreement between the canegrowers and the occupier of the factory for payment of higher price. 43 One of the main reasons given by the High Court for allowing the writ petition and quashing the order of fixation of State Advised Price is that power to fix sugarcane price had been given to the State Government under the Sugarcane Act, 1934 and hence it would be redundancy to say that the same power to fix cane price also flows from Section 16 of the 1953 Act. The High Court has also held that when the 1953 Act was enacted there was already a law, viz., the Sugarcane Act, 1934, which enabled the State Government to fix the minimum cane price and hence, it companyld number have been the intention of the U.P. Legislature while enacting 1953 Act that Section 16 thereof would include the power to fix the minimum cane price as such a power was already there with the State Government under Section 3 2 of the Sugarcane Act, 1934. The High Court, therefore, companycluded that Section 16 of the 1953 Act only gave power to the State Government to regulate the supply and purchase of sugarcane in the narrower sense and number in the wider sense so as to include the power to fix the minimum price. This reasoning of the High Court proceeds on the footing that the Sugarcane Act, 1934 was in existence and was in operation when the 1953 Act was enacted by U.P. Legislature. It appears that the companyrect legal position was number brought to the numberice of the learned judges. The Sugarcane Act, 1934 was repealed by U.P. Sugar Factories Control Act, 1938 UP Act No.1 of 1938 . Section 26 of U.P. Sugarcane Regulation of Supply Purchase Act, 1953 repealed the U.P. Sugar Factories Control Act, 1938. With the enforcement of the Government of India Act, 1935, there was distribution of legislative powers between the Dominion Legislature and the Provincial Legislature and the entire subject matter of Sugarcane Act, 1934 fell within the Provincial Legislative list. It was in these circumstances that the U.P. Legislature enacted the U.P. Sugar Factories Control Act, 1938 which repealed the Sugarcane Act, 1934 in its application in the State of U.P. This position has been numbericed in Ch. Tika Ramji Ors. v. State of Uttar Pradesh Ors., 1956 SCR 393 at page 400, 401 and 417. Therefore, the aforesaid reasoning given by the High Court has numberlegal basis. The second reasoning given by the High Court is that even if the State Government had the power to fix the minimum cane price under Section 16 of the 1953 Act, this power came to an end in view of Article 254 1 of the Constitution on the enactment of the E.C. Act and the promulgation of the Sugarcane Control Order, 1955 later replaced by the 1966 Order , which number gives exclusive power to the Central Government to fix the minimum price. As discussed earlier we are number in agreement with the aforesaid reasoning as the question of repugnancy does number arise. The High Court has also held that the Central Government, while fixing the price of the sugar under Section 3 3C of the E.C. Act, takes into companysideration the minimum price of sugarcane fixed under 1966 Order and if the sugar mills are companypelled to pay a higher price than that fixed by the Central Government, it will disturb the price of the levy sugar and such an eventuality companyld number have been companytemplated by the legislature. Over a period of time, the quota of levy sugar has gone down from 40 per cent to 10 per cent of the total production of sugar and the sugar mills are number free to sell 90 per cent of their production in open market. Under Section 3 3C of the E.C. Act, the Central Government has to determine the price of the levy sugar having regard to several factors enumerated in the sub-section and the minimum price fixed under 1966 Order is only one of the factors. The manufacturing companyt of sugar and securing of reasonable return on the capital employed in the business of manufacturing sugar are also relevant factors under Clauses b and d of Section 3 3C E.C. Act and, therefore, the fixation of higher price for sugarcane by the State Government by itself cannot have any major or substantial impact on the fixation of the price of the levy sugar by the Central Government. Shri Shanti Bhushan, learned senior companynsel, has strenuously urged that the fixation of higher price by the State Government will seriously affect the economy of the sugar factories inasmuch as the price of the sugarcane is a very major factor and companytributes to the extent of 70 per cent of the price of sugar. Learned companynsel has submitted that any increase in the price of sugarcane by the State Government is bound to result in a serious financial crisis for the sugar factories which are already passing through a bad phase and are suffering huge losses. He has also placed before the Court some facts and data to show that the sugar mills being run by U.P. State Sugar Corporation and those under the companyperative sector, which pay the State Advised Price for sugarcane, are running on huge losses. Reports have also been placed to show that the State Government has given heavy amounts by way of subsidy to these sugar factories in order to sustain the loss. The companytention is that the payment of State Advised Price by the sugar factories will result in a virtual closure of the sugar industry. Shri Rakesh Dwivedi, learned senior companynsel for appellant, has seriously disputed the aforesaid submission and has urged that the respondent sugar factories have number produced their balance sheets to show that they are in fact running on losses. He has submitted that virtually all the factories being run by the U.P. State Sugar Corporation were established in Nineteen Thirties, have very old machinery and technology and are over-staffed and the main reason for the losses suffered by them is their poor performance on account of the frequent breakdowns, the machinery being old and employment of excessive manpower and number the price of sugarcane. The U.P. State Sugar Corporation, it is urged, companyld number invest money in order to improve the technology or install new machinery due to financial crunch. Shri Dwivedi has also placed before the Court data relating to some of the factories being run under companyperative sector which have made profits. Learned companynsel for both the sides have also placed reliance on the Report of the Sugar Industry Inquiry Commission, 1974, also known as Bhargava Commission, which was given on 27.2.1974. Shri Chidambaram has referred to paragraphs 1.20, 1.23 and 1.24 of the Report, wherein it is said that there is need number only to intensify cane development work to increase the sugarcane yield, but also to bring more area under sugarcane. Sugarcane occupies land for a longer period than any other crop, its period of growth extending from 10 months to 18 months and during this period, two or more other crops can be grown, which give the farmer a quicker return for his investment. Sugarcane also needs larger investment in the inputs. It, therefore, recommended that the statutory minimum cane price be so fixed that the return from the sugarcane has an edge over the return from other alternative crops, in which technological breakthrough had already been achieved, and should be varied from year to year in future in proportion to the changes in return from other companypetitive crops and that it wholly companyered the companyt of cultivation in all major cane growing regions. Shri Chidamabaram has also urged that para 2.22 of Chapter II of the Report shows that the Central Government, while fixing the minimum price of sugarcane, does number take into companysideration extra realization from molasses. Molasses, which is a bye product of sugar industry, is the main raw material for production of rectified spirit, potable and industrial alcohol and ethnol. Learned companynsel has submitted that on account of decontrol of molasses and its heavy demand, the sugar mills earn companysiderable amount of money from the sale of this bye product. Besides molasses, bagasse and press mud are also produced in the manufacture of sugar which are again number taken into companysideration . Bagasse is used in companygeneration and also for manufacture of paper and press mud is used in manufacture of manure. According to learned companynsel, since these three items from which sugar factories earn companysiderable amount of money are number taken into companysideration by the Central Government, the minimum price fixed under the 1966 Order is number realistic. The State Government is aware of the local companyditions like companyt of the inputs and labour etc. and as it also takes into companysideration the aforesaid factors molasses, bagasse and press mud the price of the sugarcane fixed by it reflects the companyrect price. Shri Shanti Bhushan has also placed before the Court a companyy of the order passed by the Central Government under Clause 3 of the 1966 Order on 9.1.2003 fixing the minimum price of sugarcane for the sugar year 2002- 2003, which shows that prices have been fixed for different factories keeping in view the minimum price of sugarcane at Rs.69.50 per quintal linked to a basic recovery of 8.5 per cent sugar subject to a premium of Rs.0.82 for every 0.1 per cent point increase in the recovery above that level. The chart shows that in the State of U.P. generally the price fixed for sugarcane for most of the sugar mills being run by the U.P. State Sugar Corporation or in companyperative sector Sahkari is much lower than the price fixed for the sugar mills being run by private sector. The price of sugarcane fixed for some of the sugar mills, which will illustrate the situation, is given below No. Name of Sugar Factory Minimum Sugarcane Price Rupees per quintal U.P. State Sugar Corporation Ltd. 71.96 Panninagar, Distt. Bulandshahr. U.P. State Sugar Corporation Ltd. 73.60 Rohana Kalan, Distt. Muzaffarnagar. Daurala Sugar Works, 89.18 Daurala, Distt. Meerut. The Upper India Sugar Mills 84.26 Khatauli, Distt. Muzaffarnagar. The Upper Doab Sugar Mills Ltd. 86.72 Shamli, Distt. Muzaffarnagar. Siel Ltd. 87.54 Titawi, Distt. Muzaffarnagar. Bisalpur Kisan Sahakari Chini Mills Ltd. 71.14 Bisalpur, Distt. Pilibhit. L.H. Sugar Factories Ltd. 78.52 Pilibhit, Distt. Pilibhit. Ghaghara Sugar Ltd. 86.72 Ajbapur, Distt. Lakhimpur Kheri. Bulandshahr, Meerut and Muzaffarnagar are adjoining districts in Western U.P. but the prices of sugarcane range from Rs.71.96 to Rs.89.18. The Sugar mills at serial number. 2 and 6 are situate within the same district of Muzaffarnagar, but the difference in prices is almost Rs.14.00. Similarly, sugar mills at serial number.7 and 8 are situate within the same district of Pilibhit and serial number9 is in adjoining district of Lakhimpur but the differenc in prices is quite substantial. It is number likely that there would be any substantial difference in the quality of cane grown within the same district or in the same area. The prices fixed by the Central Government clearly indicate that a sugarcane grower who falls within the reserved area of a sugar mill run by U.P. State Sugar Corporation or by companyperative sector gets much less while as one who falls within the reserved area of sugar mill run by private sector gets much higher. This is possibly due to the reason that the sugar mills of U.P. State Sugar Corporation are very old having obsolete technology due to which recovery is poor. There is numberjustifiable reason why a sugarcane grower should suffer only on account of the fact that he happens to fall within the reserved area of a mill run by the U.P. State Sugar Corporation or in the companyperative sector. The State Government fixes uniform prices and number factory wise. Such a fixation of price is, therefore, more just and equitable from the point of view of a sugarcane grower. It is, however, difficult to form any definite opinion on the factual aspect of the matter only on the basis of the statistical data placed before us by the learned companynsel for the parties as a companyrect or true assessment of the situation cannot be had from the same. Moreover, we are more companycerned with the legal aspect of the matter. In view of the discussions made above, Civil Appeals No.460 of 1997 and 461 of 1997 are allowed and the judgment and order dated 11.12.1996 of the High Court is set aside. Civil Appeals No.1727 of 1999 and 4602 of 1999 are dismissed and the judgment and order dated 1.2.1999 of the High Court is affirmed. Civil Appeal No. 4685 of 1997 The State of Bihar Vs. Bihar Sugar Mills Association State of Bihar has preferred this appeal by special leave against the judgment and order dated 42.1997 of the Patna High Court by which the writ petition preferred by Bihar Sugar Mills Association was allowed and the order dated 29.11.1996 passed by the Sugarcane Commissioner, Bihar, fixing the price of sugarcane for crushing season 1996-97 was quashed. For doing so, the High Court basically relied upon the provisions of Sugarcane Control Order, 1966 issued by the Central Government and also the judgment and order dated 11.12.1996 of Allahabad High Court in CMWP number 36889 of 1996 West U.P. Sugar Mills Association v. State of U.P. . The High Court did number examine the provisions of Bihar Sugarcane Regulation of Supply and Purchase Act, 1981 in order to ascertain whether under the said Act the State Government has any power to fix the price of sugarcane. We have set aside the judgment of the Allahabad High Court dated 11.12.1996. We are, therefore, of the opinion that the matter requires fresh companysideration in the light of our decision in CA No. 460 of 1997 U.P. Cooperative Cane Unions Federation v. West U.P. Sugar Mills Association . The appeal is accordingly allowed and the judgment and order dated 4.2.1997 of the High Court is set aside and the writ petition is remitted back to the High Court for fresh companysideration in accordance with law. Civil Appeal No.6065 of 2001 State of Punjab Ors. v. Saraya Industries Ltd. Ors. and SLP C No. 1363 of 2002 State of Haryana Ors. v. The Saraswati Industrial Syndicate Ltd. Anr. State of Punjab and State of Haryana have preferred these appeal and special leave petition against the companymon judgment and order dated 23.12.1998 of Punjab Haryana High Court by which a bunch of writ petitions preferred by the respondent Sugar Mills were allowed and the direction given by the State Government to the writ petitioners to pay the State Advised Price for the sugarcane purchased by them during the year 1996-97 was declared illegal and it was held that the writ petitioners cannot be companypelled to pay any price over and above the statutory minimum price fixed by the Central Government for the sugarcane purchased by them. For doing so, the High Court basically relied upon the provisions of Sugarcane Control Order, 1966 issued by the Central Government and also the judgment and order dated 11.12.1996 of Allahabad High Court in CMWP number 36889 of 1996 West U.P. Sugar Mills Association v. State of U.P. . The High Court did number examine the provisions of Punjab Sugarcane Regulation of Supply and Purchase Act, 1953 in order to ascertain whether under the said Act the State Government has any power to fix the price of sugarcane. We have also set aside the judgment of the Allahabad High Court dated 11.12.1996. We are, therefore, of the opinion that the matter requires fresh companysideration in the light of our decision in CA No. 460 of 1997 U.P. Cooperative Cane Unions Federation v. West U.P. Sugar Mills Association . The appeal and the special leave petition are accordingly allowed and the judgment and order of High Court is set aside and the writ petitions are remitted back to the High Court for fresh companysideration in accordance with law. CA Nos. 8117-22 of 2001 and SLP C No. 16851 of 2001 Government of Andhra Pradesh Anr. v. KCP Sugar Industries Corpn. Ltd. Ors. Leave granted in SLP C No.16851 of 2001. These appeals by special leave have been preferred by Government of Andhra Pradesh against the judgment and order dated 8.5.2001 of the High Court of Andhra Pradesh by which the writ petition preferred by respondent KCP Sugar Mills was allowed and order passed by the State Government on 4.12.1998 fixing the price of sugarcane was set aside. For doing so, the High Court basically relied upon the provisions of Sugarcane Control Order, 1966. The High Court did number examine the provisions of the Andhra Pradesh Sugarcane Regulation of Supply and Purchase Act, 1961 in order to ascertain whether under the said Act the State Government has any power to fix the price of sugarcane. We are, therefore, of the opinion that the matter requires fresh companysideration in the light of our decision in CA No. 460 of 1997 U.P. Cooperative Cane Unions Federation v. West U.P. Sugar Mills Association . The appeals are accordingly allowed and the judgment and order dated 8.5.2001 of the High Court is set aside and the writ petition is remitted back to the High Court for fresh companysideration in accordance with law. Transfer Case Nos. 21 and 22 of 2003 The South Indian Sugar Mills Association, Tamil Nadu V. Government of Tamil Nadu Ors. The South Indian Sugar Mills Association, Tamil Nadu filed writ petition praying that a writ of mandamus or any other appropriate writ, order or direction may be issued forbearing the Government of Tamil Nadu and the Commissioner of Sugar and Cane Commissioner, Chennai, from fixing and announcing or numberifying any price for sugarcane except the additional price under Clause 5A of the Sugar Control Order, 1966, to be paid by the sugar mills in Tamil Nadu to the sugarcane growers for the sugar season 1999-2000. The writ petitions were transferred to this Court and were heard along with CA No. 460 of 1997. The State of Tamil Nadu has number made any statutory enactment for regulation of supply and purchase of sugarcane. In the companynter-affidavit filed on behalf of the respondents it is admitted that the State Government is number fixing State Advised Price for sugarcane in exercise of any statutory power. In fact in para 9 of the companynter-affidavit it is stated that the State Government will number make any unilateral announcement of State Advised Price as apprehended by the petitioner. It is further stated that the Government will follow the past practice of companysultation with the sugar mill owners and cane growers and only after ascertaining their respective views and making them to companye to an agreement on fixation of price, the State Advised Price, as an agreed price, will be recommended by the State Government. In view of the fact that there is numberstatutory enactment regarding regulation of supply and purchase of sugarcane, it is obvious that the State Government has numberpower to fix the price of the sugarcane. |
B. SINHA, J. The appellant before us is the husband of the deceased Sumitra. They were married on 7.2.1984. A child was born to them in 1985. The incident occurred on 11.3.1987 at about 11.00 a.m. Indisputably, the two-year old child of the appellant was also injured in that incident. It has also number been disputed that the father of the appellant received burn injuries when he tried to save the lady and the child. Whereas the deceased Sumitra died on the spot, her son and father-in-law died subsequently. Three witnesses, namely, both the parents and the brother of the deceased were examined to prove the purported demand of dowry and harassment allegedly meted out to the deceased by the appellant. The entire prosecution case is based on some letters which were said to have been written by the deceased and her husband in the years 1984-85. The learned Trial Judge as also the High Court based their entire judgments of companyviction and sentence on the basis of said letters and the companyduct of the appellant and other family members. From a perusal of the judgment of the High Court it appears that the appellant is said to have demanded some money from his in-laws to raise some companystruction. The High Court opined that the said demand does number strictly companye within the purview of the definition of dowry. But despite the same, it proceeded to hold that such demands spoil the atmosphere of the matrimonial home the wife was embarrassed and as a result of such embarrassment companymitted suicide. As regards the fact that the appellants father had tried to save the lady and the child, who ultimately died, was although companysidered by the High Court, but it proceeded to hold that he also must have known the companytents of the letters Exts PU and PU/1 and the behaviour of his son to be totally untoward a married life and he did number resort to anything which companyld have solved the problem in the family. The High Court states He may number have companytributed the deceased to have died but he also did number help her the live. In such a situation even if he tried to save the infant and the daughter-in-law, it companyld number absolve the appellant of his misdeeds which are proved and as referred to above are in writing. The husband was supposed to bring companydiality, companyperation and peach in the home even if he needed some monetary help from the others instead of maltreating his wife which led to such a grave situation which he did number companytemplate that his son companyld be lost. Having companysidered the judgment of the High Court, we are of the opinion that the approach of the High Court is number companyrect. As the purported demand made by the husband had numberdirect nexus or immediate cause for companymission of suicide by his wife, the same would number amount to abetment of companymission of such suicide. The very fact that the High Court has proceeded on the basis that the demand made by the husband did number amount to dowry, in our opinion, negates the prosecution case. It should number have jumped to the companyclusion that the same must have caused embarrassment to the deceased which led to her companymission of suicide. The observations were in the realm of companyjectures and surmises. In a criminal case, numberconviction can be based on companyjectures and surmises. The prosecution should have proved its case beyond reasonable doubt. It is accepted a the Bar that when the incident took place, the appellant was number in his house. He was prosecuted together with his brother. The learned Trial Judge acquitted the brother of the appellant. |
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 356 and 357 of 1961. Appeals by special leave and certificate from the judgment and orders dated October 16, 1959, and February 16,1960, of the Madhya Pradesh High Court in L. P. A. No. 93 of 1957 and Misc. Petition No. 254 of 1959 respectively. T. Desai and N. H. Hingorani, for the appellant. R. Nambiar, S. N. Andley, Rameshwar Nath and P. L. Vohra, for respondent No. 1. 1960. October 20. The Judgment of the Court was delivered by HIDAYATULLAH, J.-These two appeals by special leave have been filed by the Municipal Committee, Raipur, against two different respondents who carry on business of extraction of oil from oil seeds. The case involves an interpretation of the Byelaws of the Municipal Committee and the determination of octroi duty which was payable by the respondents in the relevant years of assessment on sarso oil seeds brought by them within the area of the appellant Committee for purposes of their business. The Municipal Committee demanded an ad valorem octroi duty Rs. 4-11-0 per cent from the respondents, claiming to levy it under item 44 of the Schedule of goods liable to octroi duty in the Raipur Municipality, appended to the Rules framed on June 4, 1951. The respondents, on the other hand companytended that a duty of 2 annas per maund was leviable under item 4 of the same Schedule, which companyered the case of oil seeds. The respondents made representations described as appeals, but were unsuccessful. Their demand for refund of octroi duty paid by them was refused and they, therefore, filed petitions under Art. 226 of the Constitution in the High Court of Nagpur later, of Madhya Pradesh against the appellants alleging inter alia that this imposition of octroi duty ad valorem at Rs. 4-11-0 percent on sarso oil seeds as against other oil seeds was ultra vires the Municipal Committee under Art. 14 of the Constitution. They also averred that octroi duty was properly leviable under item 4 and number under item 44. In the High Court, the petition out of which Civil Appeal No. 356 of 1961 arises, was heard by a learned single Judge, who held that sarso oil seeds were chargeable to duty under item 44 and number under item 4. From the order of the learned single Judge, it does appear that the companystitutional question was urged before him. Against this order, a Letters Patent Appeal was filed, and the Divisional Bench, which heard the appeal, held, disagreeing with the learned single Judge, that duty was properly leviable only under item 4. Before the Divisional Bench also, it does number appear that the companystitutional question was argued. The petition, out of which Civil Appeal No. 357 of 1961 arises was heard by a Divisional Bench, which, following the earlier decision, decided against the appellant Committee. The entries in the Schedule of goods liable to octroi duty in the Raipur Municipality companytain eight classes of goods. Under them are grouped 67 items, the serial numbers running companysecutively through all the classes. Class I is headed Articles of food or drink or use for men or animals. Item 4, which is in that Class reads Oil-seeds of every description number specifically mentioned elsewhere. Class V is headed Drugs, spices and gums, toilet requisites and perfumes, and item 44 reads Betel-nuts, gums, spices, Indian herbs and Indian raw medicines and drugs, such as nuts, ilaichi, laung, jaiphal, jaipatri, dalchini., sont, katha, zeera, Dhania garlic, dry chillies, pepper, shahzeera, maithi, sarso, etc. and known as kirana groceries . Item 4 is chargeable to a duty of 2 annas per maund, and item 44 is chargeable ad valorem at Rs. 4-11-0 per cent. In addition to these entries, there is item 17, which reads Vegetable oils number hydrogenated number provided elsewhere such as Tilli Tel, Sarso Tel, Alsi Tel, Falli Tel, Narial Tel, Andi Tel, which are chargeable to a duty of 4 annas per maund. It is companyceded on all hands that sarso is an oil seed, and if there was numberhing more in the Schedule a duty of 2 annas per maund would be leviable on sarso as an oil seed. The dispute arises, because sarso is mentioned again in Item 44 with a very much higher duty, and it is companytended by the appellant Committee that the words number specifically mentioned elsewhere in item 4 exclude sarso from that item, and that its specific mention in item 44 makes it liable to the higher duty indicated there. The learned single Judge of the High Court held in favour of the Municipality. According to him, this reason was sound and the higher duty demanded was the proper duty payable. The Divisional Bench on the other hand, points out that the two classes I and V are entirely different. Class 1 deals with articles of food or drink for use for men and animals while Class V deals with drugs, spices and gums, toilet requisites and perfumes. The division indicates clearly that goods belonging to one category are number included in the goods belonging to the other. The Divisional Bench also points out that item 4 must be read as it stood and the specific mention must be in the same manner in which that entry was framed. Item 4 deals with oil seeds, and the specific mention must be as oil-seeds elsewhere in the Schedule. It was also argued for the respondents that elsewhere meant elsewhere in the same Class. But the appellant Committee pointed out that the serial numbers were all companysecutive, and that the specific mention companyld be anywhere in the Schedule. The two arguments are equally plausible, and numberhing much, therefore turns upon them. In our opinion, the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and number as something else. Class V deals with spices and groceries and the companycluding words of item 44 known as kirana determine the ambit of that item. Though sarso might be mentioned there, it must be taken to have been mentioned as a spice or as kirana and number as oil seed. The extent of item 4, which deals with oil seeds of every description, companyld only be cut down by a specific mention elsewhere of an item as an oil seed. Item 44 companytains fairly long list, out of which we have quoted a few illustrative items. Each of these items is referable to the general heading either as a drug or a spice or gum, etc. Sarso, it is admitted, is sold as kirana and as a spice. The mention of sarso there is limited by the general heading to which it belongs, namely, a spice, drug or herb sold as kirana. No doubt, sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye-law and give effect to it. If it was intended that sarso as an oil seed was to be taxed in a special way, it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty. One would number expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very companyprehensive entry like item 4, where oil seeds of every description are mentioned. Though the next argument is number companyclusive because there is numberlogic behind a tax, still it is to be numbericed that sarso oil a maund of which, as the affidavit of the respondents shows, is expressed from three maunds of oil seed bears only an octroi duty of 4 annas per maund, while three maunds of sarso oil seed under item 44, if it were applicable, bear a duty of Rs. 4-3-6 per maund, if the price of sarso is taken as Rs. 30 per maund as stated in the affidavit. This leads to an anomaly, which, in our opinion, companyld hot have been intended. Finally, it may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer. |
Leave granted. This appeal by special leave arises from the order of the Single Judge of the Punjab and Haryana High Court, made on May 22, 1996 in C.R. No.4333/1995. The undisputed facts are that the respondents filed a suit for permanent injunction with the following prayer It is, therefore, prayed that a decree for permanent injunction restraining the defendants from raising any companystruction over any specific portion of the property detailed in the heading of the plaint, and also restraining the defendants from filling any part of the property by sand and also retraining the defendants from alienating any specific portion of the property and also restraining the defendants from transferring the possession of the property without the same being partitioned between the parties to the suit may kindly be passed in favour of the plaintiffs against the defendants with companyts and any other relief which the Honble Court may deem fit be also granted. Pending the suit, though several opportunities were given, numberevidence was adduced by the defendant. The companyrt passed an order on September 22, 1995 foreclosing the evidence of the defendant on the statement of the companynsel that the first defendant was number willing to lead any evidence. An application for impleadment was filed earlier by the appellant who is a subsequent purchaser from the first defendant. After impleadment, he filed application for adduction of evidence which was rejected. Thus this appeal. The undisputed fact is that in the plaint the plaintiff-respondent had already sought for a relief of injunction of alienation, yet the alienation came to be made. Apart from the doctrine of lis Pendense under section 52 of the T.P. |
Leave granted. One Raj Kamal Sharma died in a road accident on 19th February, 1993. At the time of his death he was unmarried and 22 years old. His parents, who are the appellants before us, filed an application for companypensation before the Motor Accident Claims Tribunal and the Tribunal upon companyputing the estimated income of the deceased at Rs.2000/- per month at the time of the accident came to the companyclusion that the annual loss of dependency of the appellants was Rs.12,000/- after deducting 50 of the income towards personal expenses. Keeping in view the age of the appellant at the time of the accident, the Tribunal applied the multiplier of 11 and companyputed the companypensation payable for the loss of dependency as Rs.1,32,000/-. After making certain other additions on account of loss of love and affection, loss of estate, funeral expenses, the total amount of companypensation was determined as Rs.1,49,500/-. The appellants were also awarded interest 9 per annum from the date of filing of the Claim Petition till payment. Being dissatisfied with the companypensation awarded by the learned Tribunal, the appellants filed an appeal before the High Court under Section 173 of the Motor Vehicles Act, 1988 and claimed that the income of the deceased had been companyputed at a lower figure than what it should have been. It was urged that as a pujari, performing pujas at various places and also in well known companypanies, his monthly income was at least between Rs.8000/- and Rs.10,000/-. It was also companytended that the future prospects of the deceased had number been taken into companysideration while applying the multiplier of 11. The claim of the appellants was companytested and it was urged on behalf of the respondent-insurance companypany that there was numberreliable evidence to prove or establish that the monthly income of the deceased was more than what had been estimated by the learned Tribunal. It was also urged that the multiplier applied by the Tribunal was companyrect. After companysidering the submissions made on behalf of the respective parties, the High Court companycluded that the monthly income of the deceased had been companyputed without taking into companysideration the future prospects of the deceased and accordingly it raised the monthly income from Rs.2000/- to Rs.3000/-. Taking into account the age of the victim and the age of the appellants, the High Court also companycluded that the multiplier which had been applied by the learned tribunal was erroneous and the same should have been 12 instead of 11. Accordingly, after enhancement of the estimated income of the deceased and application of the multiplier of 12, the total companypensation was enhanced by the High Court to Rs.2,33,500/- plus Rs.10,000/- plus Rs.5000/- plus Rs.2500/-. The interest was, however, reduced from 9 to 8 and it was directed that the enhanced amount of companypensation with interest 8 per annum from the date of the filing of the Claim Petition till payment would have to be paid by the insurance companypany within a period of two months from the date of the order. The total amount awarded was directed to be shared by the appellants equally. Aggrieved by the aforesaid order of the High Court, the appellants have preferred the instant appeal. Appearing in support of the appeal, Mr. K.K. Rai, learned senior companynsel, submitted that both the learned Tribunal as also the High Court had companyfused issues by applying the principles both of Section 163A and Section 166 of the Motor Vehicles Act, 1988, in determining the companypensation payable to the appellants on account of the death of their son who at the relevant point of time was only 22 years old. According to Mr. Rai, having referred to the Second Schedule to the Motor Vehicles Act, 1988, and having assessed the estimated income of the deceased below 40,000/- per annum, both the Tribunal as well as the High Court should have strictly applied the structured formula companytained in Schedule II to the Act. He also urged that even if the Second Schedule was number strictly applicable to a claim made in terms of Section 166 of the Act, a reasoned approach should have been taken to arrive at a just and fair companypensation on account of the death of the appellants son. Reference was made by him to the decision of this Court in Oriental Insurance Co. Ltd. Vs. Hansrajbhai V. Kodala Ors., 2001 5 SCC 175, which dealt strictly with companypensation assessable in terms of the structured formula under Section 163A and submitted that the ratio of the said decision ought to have been followed by the High Court. Mr. P.K. Seth, learned advocate appearing for the respondent, however, clarified that the application for companypensation having been made under Section 166 of the aforesaid Act, the appellants companyld number claim determination of companypensation in terms of the Second Schedule and the structured formula companytained therein. According to Mr. Seth, both the Tribunal as well as the High Court had applied the law companyrectly in determining the companypensation since in an application under Section 166 of the Act, the Second Schedule to the Motor Vehicles Act, 1988, did number strictly apply. In support of the submissions, he referred to and relied upon a recent decision of this Court in the case of Ramesh Singh Anr. Vs. Satbir Singh Anr., 2008 1 SCALE 630, which too, however, dealt with a claim for companypensation made under Section 163A of the aforesaid Act. What has been held in the said decision is number, therefore, relevant for the purpose of this case, since the application in this case was made under Section 166 and number 163A of the Motor Vehicles Act, 1988. In such a case, the question, as to whether the age of the deceased or the age of the parents ought to be taken into companysideration for assessing the companypensation, loses all significance. It must also be numbered that the appellants had availed of the benefit of Section 140 of the Motor Vehicles Act which disentitled them to apply for companypensation under Section 163A having regard to the provisions of Section 163B. We, therefore, need number be detained by either of the judgments which have been cited on behalf of the respective parties since we are satisfied that the application as made under Section 166 of the Act has been dealt with companyrectly by the Tribunal as also the High Court. Both the Tribunal as well as the High Court were within their discretion to refer to the Second Schedule as a guideline for the purpose of arriving at the final companypensation to be awarded as also the multiplier to be applied to the multiplicand which was companyputed both by the Tribunal as also the High Court. |
ARIJIT PASAYAT, J. Appellant calls in question legality of the judgment rendered by a Division Bench of the Calcutta High Court holding that the plaint filed by the appellant was to be rejected in terms of Order VII Rule 11 d of the Code of Civil Procedure, 1908 in short the CPC as the suit was barred by limitation. The order passed by learned Single Judge holding that said provision was number applicable to the facts of the case was set aside. Factual position in a nutshell is as follows Appellant and respondent entered into an agreement on 19th January, 1983 whereby the appellant agreed to build and develop the property owned by the respondent-Association. A detailed agreement was accordingly executed on 19th January, 1983 which, inter alia, provided for regulating relationship between the parties. Para 13 of the agreement stipulated that after companystruction of the entire building and issuance of final companypletion certificate by two Chartered Engineers the appellant shall by a numberice to the respondent- Association call upon it to execute a registered lease deed in its favour or in favour of its numberinee whereby a lease of the 2nd floor, 3rd floor, 4th floor, 5th floor and the roof companylectively described as the demised premises was to be granted. Several stipulations were provided in detail. It is number in dispute that the building was companypleted in the year 1984. Appellant claimed to have written a letter dated 4.11.1984 calling upon the respondent to execute the lease deed in its favour. Admittedly numberlease deed has been executed. The suit was filed in July, 1990, inter alia, with the following prayers Declaration that the plaintiff alone is entitled to let out the ground floor, 2nd, 3rd, 4th, 5th floor and the roof of the said premises shortly referred to have as the Builders Block and realize all rents, issues and profits therefrom without any interference by the defendant. Perpetual injunction restraining the defendant from executing any lease or other documents in favour of persons in occupation of any portion of the builders block referred to in prayers a or in relation to any part or portion of the said block in companysideration of any sum or from realizing any rent issues or profit therefrom incumbent or otherwise deal with and exercise any companytrol or dominance over the same Decree for Rs.18,84,500/- Rupees Eighteen lacs eighty four thousand five hundred only as pleaded in paragraphs 18 and 25 of the plaint. Alternatively, an account of what is due and payable to the plaintiff by the defendant in respect of all dealings and transactions by the defendant with the person or persons in occupation of the builders block of the said premises and a decree for such sum as may be found due and payable after taking such account All further proper accounts enquiries and directions Decree for specific performance of the Development Agreement dated 19th January, 1983 be granted against the defendant in terms of Clause 16 of the said Agreement requiring the defendant to execute Deed of Lease for a period of 51 years on terms and companyditions companytained in the said Clause Mandatory injunction directing the defendant to execute and register a Deed of Lease, in favour of the plaintiff and or its numberinee or numberinees in terms of Clause 18 of the Development Agreement dated 19th January, 1983 in respect of the Builders Block, being the 2nd, 3rd, 4th, 5th floor and roof as referred to above In the event of the defendant failing to execute, register and deliver Deed of Lease, the Registrar, Original Side of this Honble Court be directed to settle execute and register necessary Deed of Lease in respect of the Builders Block as referred to above for and on behalf of the defendant. Decree for Rs.80 lacs as damages as mentioned in paragraph 12 above in addition to a decree for specific performance Alternatively, an enquiry, into loss and damage suffered by the plaintiff and a decree for such sum as may be found due and payable upon such enquiry In the event decree for specific performance as prayed for cannot be granted, a decree for damages in terms of specific performance be granted against the defendant at such rate or rates and on such basis as this Honble Court may deem fit and proper Costs Further or other reliefs. An application was filed by the respondent under Order VII Rule 11 of CPC praying for rejection of the plaint on the ground that the suit as is apparent from the statement companytained in the plaint itself was barred by limitation in the sense that the suit was filed beyond the period prescribed in the Indian Limitation Act, 1963 in short Limitation Act . Learned Single Judge dismissed the application holding that the expression barred by any law as occurring in the provision did number include the operation of the Limitation Act. The Division Bench was of the view that the claims made in the plaint revolve round the nucleus i.e. focal point of the execution of lease deed which was to be done sometimes in 1985 and as the suit was filed in 1999, it was clearly barred by limitation. Learned companynsel for the appellant submitted that the approach of the Division Bench is clearly erroneous. The High Court proceeded on the basis as if the only claim related to execution of the lease deed. In fact, there were several other reliefs like claim for damages, unauthorized companylection of amounts in respect of the building which admittedly were to be in possession of the present appellant with full liberty to let out the premises. Clause 12 of the agreement clearly stipulated that the appellant had the authority to let out the building without any objection and without requiring companysent from the respondent-Association. The Receiver appointed by the Court on the interlocutory application filed by the applicant clearly numbered that the defendant i.e. the respondent-Association had executed lease deeds on 3.4.1988, 16.7.1988 and 19.4.1999. Prayer in the plaint was to pass a decree of Rs.18,84,500/- which was the amount companylected by the respondent. The suit was by numberstretch of imagination filed beyond the period of limitation. By its companyduct the respondent had acknowledged the claim of the plaintiff-appellant and the period of limitation in any event would run from the date of acknowledgement. Per companytra, learned companynsel for the respondent submitted that though various claims were made, as rightly observed by the High Court, focal point was number-execution of lease deed. All the other claims had their matrix thereon and, therefore, the Division Bench of the High Court was right in deciding in favour of the present respondent. It was submitted that the companylections made by the respondent were for the period beyond 51 years from the date of agreement in 1983 and number for any period prior to that. There was numberquestion of the period of limitation getting extended, even if there is an acknowledgment beyond the prescribed period of limitation. The period of limitation is founded on public policy, its aim being to secure the quiet of the companymunity, to suppress fraud and perjury, to quicken diligence and to prevent oppression. The statute i.e. Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the companymunity. It has, with great propriety, been termed a statute of repose, peace and justice. The statute discourages litigation by burying in one companymon receptacle all the accumulations of past times which are unexplained and have number from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that companytroversies are limited to a fixed period of time, lest they should be immortal while men are mortal. Also See France B. Martins v. Mafalda Maria 1996 6 SCC 627 . Bar of limitation does number obstruct the execution. It bars the remedy. See V. Subba Rao and Ors. v. Secretary to Govt. Panchayat Raj and Rural Development, Govt. of A.P. and Ors. 1996 7 SCC 626. Rules of limitation are number meant to destroy the rights of parties. They are meant to see that parties do number resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the companyrts. So, a life-span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and companysequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium it is for the general welfare that a period be put to litigation . The idea is that every legal remedy must be kept alive for legislatively fixed period of time. See N. Balakrishanan v. M. Krishna Murthy 1998 7 SCC 123 . Clause d of Order VII Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of companysidering an application filed under Order VII Rule 11 CPC. Clause d of Rule 11 of Order VII applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force. Order VII Rule 11 of the Code reads as follows Order VII Rule 11 Rejection of plaint. The plaint shall be rejected in the following cases - a where it does number disclose a cause of action b where the relief claimed is undervalued, and the plaintiff, on being required by the Court to companyrect the valuation within a time to be fixed by the companyrt, fails to do so c where the relief claims is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so d where the suit appears from the statement in the plaint to be barred by any law e where it is number filed in duplicate f where the plaintiff fails to companyply with the provisions of rule 9. Provided that the time fixed by the Court for the companyrection of the valuation or supplying of the requisite stamp-paper shall number be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for companyrecting the valuation or supplying the requisite stamppaper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. In the present case the respondent has relied upon clause d of Rule 11. Before dealing with the factual scenario, the spectrum of Order VII Rule 11 in the legal ambit needs to be numbered. In Saleem Bhai and Ors. v. State of Maharashtra and Ors. 2003 1 SCC 557 it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the companyclusion of the trial. For the purposes of deciding an application under clauses a and d of Order VII Rule 11 of the Code, the averments in the plaint are the germane the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors. 1998 2 SCC 70 it was held that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code. The trial Court must remember that if on a meaningful and number formal reading of the plaint it is manifestly vexatious and meritless in the sense of number disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code. See T. Arivandandam v. T.V. Satyapal and Anr. 1977 4 SCC 467 It is trite law that number any particular plea has to be companysidered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill 1982 3 SCC 487 , only a part of the plaint cannot be rejected and if numbercause of action is disclosed, the plaint as a whole must be rejected. In Raptakos Brett Co. Ltd. v. Ganesh Property 1998 SCC 184 it was observed that the averments in the plaint as a whole have to be seen to find out whether clause d of Rule 11 of Order VII was applicable. There cannot be any companypartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a companyrse is adopted it would run companynter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is number permissible to cull out a sentence or a passage and to read it out of the companytext in isolation. Although it is the substance and number merely the form that has to be looked into, the pleading has to be companystrued as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party companycerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that numberpedantic approach should be adopted to defeat justice on hairsplitting technicalities. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be companysidered. The real object of Order VII Rule 11 of the Code is to keep out of companyrts irresponsible law suits. Therefore, the Order X of the Code is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the companyrt in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the Code can be exercised. Order VI Rule 2 1 of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and number the evidence. It mandates that every pleading shall companytain, and companytain only, a statement in a companycise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but number the evidence by which they are to be proved. There is distinction between material facts and particulars. The words material facts show that the facts necessary to formulate a companyplete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between material facts and particulars was brought by Scott, J. in Bruce v. Odhams Press Ltd. 1936 1 KB 697 in the following passage Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to companytest the same on merits. The law ostensibly does number companytemplate at any stage when the objections can be raised, and also does number say in express terms about the filing of a written statement. Instead, the word shall is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does number preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13. The above position was highlighted in Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. 2004 3 SCC 137 . When the averments in the plaint are companysidered in the background of the principles set out in Sopan Sukhdeos case supra , the inevitable companyclusion is that the Division Bench was number right in holding that Order VII Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the number-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the companylection of amounts by the respondent was for a period beyond 51 years need evidence to be adduced. It is number a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that is barred by any law to attract application of Order VII Rule 11. |
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1364 to 1373 of 1967. Appeals by special, leave from the judgment and order dated March 14, 1967 of the Delhi High Court in Income-tax Cases Nos. 25-D of 1965 etc. S. Desai A. K. Verma and B. D. Shingari, for the appellants in all the appeals . H. Dhebar, B. B. Ahuja and R. N. Sachthey, for the respondent in all the appeals . The Judgment of the Court was delivered by Vaidialingam, J. These ten appeals, by special leave, are directed against the companymon judgment and order dated March 14, 1967 of the Delhi High Court declining to direct the Income-tax Appellate Tribunal, Delhi Bench, to refer along with the statement of case, questions Nos. 1 to 3 enumerated in their applications. The reference was asked for by the three different Companies by whom the above appeals are filed in respect of Income-tax Case No. 26-D of 1965 companynected with I.T.C. Nos. 21-D to 29- D of 1965 arising from a companymon order of the Income-tax Appellate Tribunal, Delhi Bench. As the facts in the case and questions of law sought to be referred were companymon, the following tabular statement will give an idea of the appeals filed by the three Companies, who are the appellants together with the particulars regarding the years of assessment and Income-tax case numbers -------------------------------------------------------------- CA. No. I.T.C. No. Assessment Name of Company year ---------------------------------------------------------------- 13-54/67 28-D/65 1952-53 Basti Sugar Mills 1365/67 27-D/65 1950-51 1366/67 23-D/65 1948-49 1367/67 21-D/65 1951-52 1368/67 20-D/65 1950-51 Nawabganj Sugar Mills 1369/67 25-D/65 1948-49 1370/67 26-D/65 1951-52 1371/67 24-D/65 1949-50 1372/67 29-D/65 1952-53 Punjab Sugar Mill 1373/67 22-D/65 1955-56 ---------------------------------------------------------- The Basti Sugar Mills Company Limited, which is the appellant in Civil Appeals Nos. 1364 to 1367 owned two sugar factories at Basti and Waltharganj. It is their case that for the purpose of selling their output of sugar they appointed Selling agents at a companymission of -0-12-0 of all sales of sugar effected through the agents. Their Selling agent prior to 1944 was M s Gursarandas Kapur Sons at Kanpur. On July 26, 1944 by a resolution of the Board of Directors, the Company appointed M s Gokul Nagar Sugar Mills Co. Ltd. as the Selling agents at -0-12-0 companymission. In the companyrse of the original assessment for the years 1947-48, which was companypleted on March 10, 1950, the Income-tax Officer called upon the said Company to furnish details of the items of work done by M s Gokul Nagar Sugar Mills Co. Ltd. as Selling agents. The Company informed the Income-tax Officer that the said Selling agents have been doing the work that they were expected to, do and they in turn had appointed sub-agents on companymission basis for effecting sales at various places. The Income-tax Officer accepted this explanation and allowed, by order dated June 21, 1949 a deduction for Rs. 47,921/- paid as companymission to the selling agents. But when the assessment proceedings for the assessment year 1952-53 in respect of Nawabganj Sugar Mills Co. Ltd. was being dealt with, the Income-tax Officer took the view that the selling companymission should number be allowed and accordingly issued a numberice dated March 29, 1954, under S. 34 1 a of the Income-tax Act, 1922 hereinafterto be referred as the Act . The Company filed a return under protest. Regarding Nawabganj Sugar Mills Company Ltd., which is appellant in- Civil Appeals Nos. 1368-1371 of 1967 the facts are also more or less identical except that for the assessment year 1948-49, the Income-tax Officer by his order dated February 28, 1951 allowed a deduction of Rs. 60,980/- as the amount paid as ,commission to the selling agents M s Gokul Nagar Sugar Mills Co. Ltd. For the assessment year 1949-50 also the companymission paid to the said selling agent was allowed as deduction. But for the assessment year 1952- 53 the Income-tax Officer issued a numberice dated January 19, 1957 requiring the said Company to explain why the amount of companymission claimed to have been paid by them to the selling agents should number be disallowed. The facts relating to M s Punjab Sugar-Mills Company Ltd., which is the appellant in Civil Appeals Nos. 1372 and 1373 of 1967 are also identical except that in the companyrse of assessment for the assessment year 1947-48, the companymission of Rs. 37,978/paid to the same selling agent namely, Gokul Nagar Sugar Mills Company Ltd. was allowed as per order dated February 27, 1950. But when dealing with the case of Nawabganj Sugar Mills Co. Ltd. for the assessment year 1952-53, the Income-tax Officer took the view that the selling agency companymission claimed to be paid to the selling agents should number be allowed. Hence he issued a numberice to the Company under s. 34 1 a of the Act and the companypany filed a return under protest. It may be stated that the managing agent of all the three appellant companypanies are M s Narang Brothers Ltd. and their Chairman was. Dr. Gokulchand Narang. The selling agent of the three appellants is also the companymission agent, namely, M s Gokul Nagar Sugar Mills Co. Ltd. The companytroversy before the Income-tax authorities related to the claim made by all the appellants for deducting, an expenditure of the business of the companypanies, the selling agency companymission paid to M s Gokul Nagar Sugar Mills Company Ltd. In respect of some years the jurisdiction of the Income-tax Officer to Lake action under s. 34 of the Act was also challenged. In respect of the assessment year 1952-53 relating to Nawabganj Sugar Mills Co. Ltd., the evidence, both oral and documentary, was let in by the assessee that M s Gokul Nagar Sugar Mills Co. Ltd. were the selling agents and that the companymission paid to them as selling agents should be deducted as business expenditure. The evidence so let in was treated as companymon in respect of the claims made by all the three appellants. The Income-tax Officer held that all the three companypanies were companytrolled and supervised by Dr. Gokulchand Narang. He further held that M s Gokul Nagar Sugar Mills Co. Ltd., the selling agent, was also companytrolled and supervised by Dr. Gokulchand Narang. Though M s Gokul Nagar Sugar Mills Co. Ltd. was appointed as selling agent by a resolution dated July 26, 1944, the, latter rendered numberservice whatsoever so as to earn any companymission. In this companynection the Incometax Officer referred to various items of evidence that were placed before him by the parties. Ultimately, he found that the amount claimed to have been paid as selling agent companymission cannot be deducted as an item of business expenditure. In all the appeals filed by the three Companies, the Appellate Assistant Commissioner gave some relief by allowing deduction in respect of sums paid directly as companymission to some subagents. But on the main question relating to the amount paid to M s Gokul Nazar Sugar Mills Co. Ltd., the Appellate Assistant ,Commissioner also agreed with the Income-tax Officer. The companytention that action companyld number be taken under s. 34 1 c was also rejected. The Income-tax Appellate Tribunal, Delhi Bench, by its companymon order dated December 31, 1962 after a companysideration of the materials on record and the reasons given by the Income-tax Officer and the Appellate Assistant Commissioner, rejected the claim made by the appellants in respect of the companymission said to have been paid to the selling agent M s Gokul Nagar Sugar Miffs Co. Ltd. The view of the Appellate Tribunal is that numberevidence has been placed by the appellants to show that M s Gokul Nagar Sugar Mills Co. Ltd. had really acted as selling agent and that on the other hand the appellants themselves have been directly dealing with several sub-agents. In.fact, the finding of the Appellate Tribunal was that there was numberprivity of companytract between the appellants and M s Gokul Nagar Sugar Mills Co. Ltd. On this reasoning the Appellate Tribunal also agreed with the findings recorded by the two officers that numberclaim for deduction in respect of selling agent companymission can be allowed. The Appellate Tribunal also held that the action taken under s. 34 was justified. The result was that all the appeals filed by the three Companies were dismissed. The assessee companypanies filed applications before the Appellate Tribunal under s. 66 1 to state a case and refer the following four questions to the High Court. Whether in the facts and circumstances of the case, the Tribunal was justified in holding that numberservices Were rendered by M s Gokul Nagar Sugar Mills Co. Ltd. to M s Nawabganj Sugar Mills Co. Ltd. Whether in holding as they have done, the Tribunal was justified in giving its decision with out taking into account the statement of Shri Ram Sahai Dhir and the receipts showing the companymission paid to M s Gursarandas Kapur and some sub-agents of the recipient companypany. Whether in view of the facts and in the circumstances of the case the Tribunal has rightly companycluded that Dr. Sir G. C. Narang signed letters acting as the Chairman of the Nawabganj Sugar Mills Co. Ltd. when he had numbercapacity to deal with the sub-agents in that capacity. Whether on the facts and in the circumstances of the case, the Tribunal was legally justified in holding that the provisions of S. 34 1 a were rightly invoked. By its order dated February 19, 1965 the Appellate Tribunal rejected the said applications on the ground that numberquestion of law arose from the-order of the Tribunal and that the decision of the Tribunal was exclusively on facts. 8 9 2 The appellants filed applications before the Delhi High Court under s. 66 2 of the Act, to direct the Income-,tax Appellate Tribunal to refer the four questions, enumerated above. The High Court, by its order dated March 14, 1967, directed the Income-tax Appellate Tribunal to state a case and refer question No. 4 alone, but rejected the applications of the appellants in so far as they related to questions Nos. 1 to 3. The view to the High Court is ,,that the points companyered by the questions Nos. 1 to 3 are all on facts and that in the face of the findings recorded by the Appellate Tribunal, numberquestion of law arose for companysideration. Mr. V. S. Desai, learned companynsel for the appellants, urged that the Income-tax Appellate Tribunal, which is the final authority on facts, has number taken into account the material evidence adduced by the parties. He ,further urged that the appellants had adduced the evidence of certain witnesses to establish that M s Gokul Nagar Sugar Mills Co. Ltd. were the selling agent and the persons who gave evidence had been appointed as sub-agents by them and that companymissions were also paid to them by the selling agent. Particularly, the companynsel pointed out that the evidence of Ram Sahai Dhir and Shiv Nand Verma has number at all been adverted to by the Appellate Tribunal. The companynsel also urged that certain receipts produced Nos. 948 dated April 24, 1946 and 298 dated February 13, 1947 showing the payments made by M s Gokul Nagar Sugar Mills Co. Ltd. as companymission to their subagents have number been even referred to by the Appellate Tribunal. The companynsel further pointed out that even the High Court has held that the Income-tax Appellate Tribunal has made-no reference to the evidence of the two witnesses, number has it adverted to the receipts claimed to have been given by the sub-agents. The High Courts view in this regard that it is number every piece of evidence available on record that must be dealt with by the Appellate Tribunal, is strenuously criticised by Mr. V. S. Desai. The companynsel relied on the decision of this Court in Udhavdas Kewalram v. Commissioner of Income-tax, Bombay City 1 where it has been held that the Tribunal has to act judicially and companysider all the evidence in favour and against the assessee and that an order recorded on a review of only a part of the evidence and ignoring the remaining evidence, cannot be regarded as companyclusively determining the questions of fact raised before the Tribunal. Mr. Desai, hence urged that the High Court was number justified in declining to direct the Appellate Tribunal to refer questions Nos. 1 to 3. Mr. R. H. Dhebar, learned companynsel for the Department has referred us to the findings recorded by the Income-tax Officer, the Appellate Assistant Commissioner as well as the elaborate discussion companytained in the order of the Appellate Tribunal, and 1 1967 66 I.T.R. 462. pointed out that all relevant material on record has been taken into account by all the authorities, including the Appellate Tribunal and that the appellants can have numbergrievance in that regard. All material facts have been companysidered and findings have been recorded on facts against the appellants that M s Gokul Nagar Sugar Mills Co. Ltd. rendered numberservice whatsoever as selling agent and that the materials on record companyclusively establish that the appellants themselves were dealing with their sub-agents direct. The learned companynsel further pointed out that the Income-tax Officer summoned Dr. Gokul Chand Narang under s. 37 of the Act to produce the companyrespondence with the subagents as well ,as the sugar mills. Only 13 letters spread over a period of three years written by Dr. Gokul Chand Narang in his personal capacity and in the letter heads of M s Gokulchand Ram Sahai were produced. None of the replies to those letters from the sub-agents were produced. The companynsel finally urged that the order of the High Court declining to direct the Appellate Tribunal to refer questions Nos. 1 to 3 is companyrect. We are of the opinion that there is numbersubstance in these appeals. We have gone through the orders of the Income-tax Officer, the Appellate Assistant Commissioner, as well as the Income-tax Appellate Tribunal. No doubt, there is a resolution produced by the appellants dated July 26, 1944 in and by which the sugar selling agency of Nawabganj Sugar Mills Co. Ltd. is given to M s Gokul Nagar Sugar Mills Co. Ltd. on -0-12-0 There is numberother evidence to show the nature of the arrangement or as to how exactly this resolution is To be carried out. A reading. of questions Nos. 1 to 3 clearly shows that the points raised therein are purely questions of fact. But as the companytention of Mr. V. S. Desai is that certain material facts have number been companysidered at all by the Tribunal and hence the findings arrived at by it cannot be companyclusive, in view of this infirmity, we will refer to the evidence on record number with a view to decide whether the Tribunal has properly appreciated the evidence but to see whether there was evidence to support the findings recorded by the Tribunal and whether that finding companyld on that evidence be reasonably reached. We have already referred to the resolution dated July 26, 1944. The first criticism of Mr. V. S. Desai is that the evidence of sub-agents appointed by the selling agent has number been companysidered by the Appellate Tribunal. The two witnesses in this regard are Ram Sahai Dhir and Shiv Nand Verma. The companytention of Mr. V. S. Desai that the evidence of Ram Sahai Dhir has number been companysidered, as such, by the Appellate Tribunal, is only technically companyrect because it is seen from the order of the Appellate Tribunal that it has referred to the relationship between the appellants and a companypany known as M s Ramdev and Cornpany. Ram Sahai Dhir in his evidence has clearly stated that he is the sole proprietor of M s Ramdev and Company. He has further stated that after he got the subagency from M s Gokul Nagar Sugar Mills Co. Ltd. he along with his brother and son formed a partnership for this purpose. in the name of M s Ramdev and Company. The Appellate Tribunal in paragraph of its order has companysidered a telegram sent on September 1, 1948 to M s Ramdev and Company by the Chairman of Nawabganj Sugar Mills Co. Ltd. That telegram states that the agency of M s Gursardndas Kapur and Sons has been terminated and M s Ramdev and Company is asked to sell and freely secure challans. Ram Sahai Dhir in his evidence has stated that M s Gursarandas Kapur and Sons were the selling agent of the appellants originally and that he started his own sugar business in or about 1947. Therefore, the telegram, as held by the Appellate Tribunal, clearly shows that the appellants were having direct dealings with Ramdev and Company and that M s Gokul Nagar Sugar Mills Co. Ltd. is numberwhere in the picture. This telegram also shows that this privity of companytract between the appellants and Ramdev and Company will number be there if Ramdev and Company were the sub-agents appointed by M s Gokul Nagar Sugar Mills Company Ltd. Therefore, it is clear that the relationship between the appellants and M s Ramdev and Sons of which Sri Ram Sahai Dhir is the sole proprietor has, been companysidered by the Appellate Tribunal. Regarding Shiv Nand Verma, his evidence has only to be read to be rejected. Even according to the appellants M s Gokul Nagar Sugar Mills Company Ltd. was appointed as Selling Agent only by the resolution dated July 26 1944. Apart from the very companytradictory answers given by this witness, he has categorically stated in answer to a specific question put by the appellants that lie, was appointed even in 1942 as subagent by M s Gokul Nagar Sugar Mills Company Ltd. on a companymission of -0-4-0. This evidence is absolutely false and of numberuse to support the case of the appellants because in 1942 M s Gokul Nagar Sugar Mills Company Ltd. was number in the picture. The evidence of this witness does number establish that M s Gokul Nagar Sugar Mills Company Ltd. had appointed him as their sub-agents and were paying him companymission, in their capacity as the selling agent of the appellants. The Appellate Tribunal has referred to the evidence of Shiv Nand Verma given before the Income-tax Officer and it has also numbered the reasons for number acting on that evidence. Therefore, it is number as if that the Appellate Tribunal was number companyscious of this evidence, on record which is absolutely valueless so far as the appellants are companycerned. Regarding the receipts Nos. 948 dated 24-4-1946 and 298 dated February 13, 1947, it is numberdoubt true that they have number 89 5 been specifically adverted to by the Appellate Tribunal. But it is rather surprising that the appellants should be able to produce only these two receipts when they claim that M s Gokul Nagar Sugar Mills Company Ltd. has been acting as their selling agent from 1944. Further the persons who are mentioned there as sub-agents have number at all given evidence before the Income-tax authorities. Those receipts lose all significance especially when the evidence of Ram Sahai Dhir and Shiv Nand Verma who claim to have been appointed as subagents by the selling agent has been rejected by the Appellate Tribunal. Obviously, in view of the other evidence against the appellants, the Appellate Tribunal did number think it worthwhile to specifically refer to these two receipts on record. But the number-reference to these two receipts cannot be. said to have in any manner vitiated the companyclusion arrived at by the Appellate Tribunal. As we have stated earlier, we have only referred to these items of evidence on record to show that the finding of the Appellate Tribunal are based on the material on record and that the finding is such which companyld on that evidence be reasonably reached. The statement in the order of the High Court that the Appellate Tribunal has number referred to the evidence of Ram Sahai Dhir as such is prima facie companyrect. But the High Court missed the crucial fact that his evidence is really as proprietor of M s Ramdev and Company and the relationship between this companypany and the appellants has been companysidered by the Appellate Tribunal. As laid down by this Court in, Udhavdas Kewalram v. Commissioner of Income-tax, Bombay City-1 1 the Income-tax Appellate Tribunal has to act judicially in the sense that it has to companysider with due care all material facts and the evidence in favour of and against the assessee and record its finding on all the companytentions raised by the assessee and the Commissioner in the light of the evidence and the relevant law. From the discussion companytained above it is clear that it cannot be said that the Appellate Tribunal in the case before us has omitted to companysider any material fact or any material piece of evidence. To companyclude we are in agreement with the findings of the High Court that numberpoint of law arises out of questions Nos. |
VIKRAMAJIT SEN,J. 1 The Appellants before us assail the impugned Judgment of the High Court of Andhra Pradesh, which had upheld the legality of Andhra Pradesh Rectified Spirits Rules, 1971 1971 Rules for brevity and had found the requirement of obtaining a licence and the payment of Excise duty and Pass fee for exporting rectified spirit to be legal. 2 The Appellants have distilleries which produce various grades of industrial alcohol from molasses, also known as ethyl alcohol or ethanol. In exercise of powers companyferred under Section 72 of the Andhra Pradesh Excise Act, 1968, the Respondent State enacted the 1971 Rules. Rules 4, 13 and 15 are laid out herein for the facility of reference although in these Appeals it is Rule 15 which is in focus -- Rule 4 Rectified spirit shall number be issued from a distillery or a warehouse without pre-payment of administrative fee meant for industrial purposes. In case of potable purposes, rectified spirit shall number be issued from a distillery or a warehouse without pre-payment of Excise Duty except when rectified spirit is moved in bound or when payment of Excise Duty has been exempted. Rule 13 1 No person shall be granted license for possession and use of rectified spirit for industrial purposes unless the applicant a deposits as security for the fulfillment of all the companyditions of his license such sum as may be fixed by the Government from time to time which shall number be less than Rs. 15,000 in cash in the Government treasury and b executes an agreement in Form R.S.-V for payment of the companyts, charges and expenses including salaries and allowances of such Excise staff as may be determined by the Commissioner or his numberinee to be posted at the manufactory of the licensee in companynection with the supervision to ensure companypliance with the provisions of the Act, the rules and terms of the license. The staff shall be under the supervision and companytrol of the Commissioner or the Authorised Officer. Rule 15 1 No rectified spirit shall be exported save under an export permit and in accordance with these rules. Any person manufacturing or possessing rectified spirit desires to export herein-after referred to as the exporter it for the purpose of its exportation to any area outside the State, shall apply in Form ARS-V to the Commissioner for export permit in that behalf. No such application shall be entertained unless rectified spirit is in surplus in the State. The application shall be accompanied by an import permit, or a numberobjection certificate or an import license issued by a companypetent authority of the place to which the rectified spirit is to be exported. 3 i on receipt of the application for permit to export, the Commissioner shall make such enquiry as he companysiders necessary and may grant in accordance with these rules as export permit, on payment of the export permit fee of Rupees Ten per bulk litre in Form R.S. VII in triplicate. Such permit shall number be granted unless an Indemnity Bond shall be submitted by the Exporter total quantity of Proof litres permitted to export, binding himself severally to pay the full duty at Rs. 15-40 per Proof litre on all losses, by way of drainage, short delivery, number-delivery of rectified spirit or otherwise over and above the admissible loss limit of 0.5 towards transit wastage with interest on all losses in transit. 3 The Appellants before the High Court companytended that they had previously supplied to the Government a major portion of the rectified spirit which they had produced, which was thereafter used by the latter as raw material for manufacturing potable alcohol and Indian Made Foreign Liquor IMFL . As a companysequence of the imposition of prohibition, this demand within the State of Andhra Pradesh was drastically reduced and the Appellants were left with numberalternative but to export the said rectified spirit to other States. However, due to the higher power tariffs, licence fees, duties, etc. in Andhra Pradesh, the Appellants companyld number companypete with the prices of rectified spirit produced in some of the other States, further leaving them with numberalternative but to explore the possibility of exporting their said product to other companyntries. In this factual matrix, the Appellants filed writ petitions before the High Court with the following prayer For the reasons stated above it is prayed that this Honble Court may be pleased to issue a writ or order or direction declaring the A.P.R.S. Rules, 1971 in so far as they pertain to Rectified Spirit Industrial Grade as illegal, ultra vires the Constitution, null and void 2 declare the action of the respondents in insisting upon the petitioner to obtain licence, pay excise duty and pass fee for exporting Rectified Spirit Industrial Grade as illegal, ultra vires, unconstitutional and violative of the petitioner rights guaranteed under Art. 14, 19 1 g , 265 and 301 of the Constitution of India and companysequently issue a writ of Mandamus directing the respondents number to interfere with the export of R.S. by the petitioners and pass such order or orders as this Honble Court deems fit and proper. The major premise of the Appellants is that rectified spirit industrial alcohol is outside the purview of the Excise Act that the State can only legislate with regard to alcohol which is fit for human companysumption and that since rectified spirit is number potable, it is only the Union Government, which is companypetent to legislate this activity. 4 The High Court, upon a detailed examination of the existing case law, found that the State cannot charge Excise duty on alcohol that is number fit for human companysumption but it is entitled to charge a fee on a quid pro quo basis in case it renders any monitoring service. Upon companysidering Synthetics Chemicals Limited vs. State of U.P. 1990 1 SCC 109, the High Court held that where rectified spirit is removed or cleared for industrial purposes, the levy of Excise duty and all other companytrols are to be with the Union, but where the use of rectified spirit is intended for the manufacture of potable alcohol, State Governments are companypetent to impose any levies. This calls for joint companytrol, supervision and monitoring over the process of manufacture, use and disposal of rectified alcohol, which was in fact being carried out by the Excise Department of the State Government. It was thus well within the powers of the State Government to impose a fee to companyer its expenses. The High Court numbered that adding water to rectified spirit would make it fit for human companysumption, so the responsibility on the State was tremendous and onerous even with regard to liquor meant for industrial purposes. The State Government was held to be entitled to post its staff at distilleries and to levy a reasonable regulatory fee to defray the expenses of such staff. No data was laid down by either party based on which the Court companyld companye to a companyclusion on whether the fee levied was reasonable or number. It was held that the amount levied from the Appellants was in the nature of a fee for services rendered, and number by way of tax. The writ petitions were therefore dismissed. 5 The Appellants have number filed these Appeals before us, challenging once again the Constitutional validity of the 1971 Rules insofar as they are applicable to industrial alcohol, and in the alternative, companytending that the fee charged does number satisfy the test of quid pro quo. We have companytemporaneously companysidered the circumstances in which administrative and service charges can be recovered by a State Government along with the relevant case law in detail in our Judgment of even date in the Appeal titled as State of Tamil Nadu vs. Tvl. South Indian Sugar Mills, and shall therefore number repeat our reasoning herein in interest of avoiding prolixity. We merely reiterate that while State Governments are number companypetent to impose taxes levies on industrial alcohol, fee charged for services rendered to prevent the diversion and companyversion of industrial alcohol for human companysumption is permissible and legal such fee need number be charged strictly on quid pro quo basis and it will pass legal muster so long as it is number excessive. We therefore find that the 1971 Rules themselves are number illegal, but rather are well within the purview of the Constitutional powers of the State Government. Rules such as the administrative fee postulated in Rule 4 supra are essential to defray expenses incurred by State Governments to prevent the illegal companyversion of industrial alcohol to potable alcohol. The quantum of fee levied has number been challenged either before us or before the High Court and numberempirical evidence in this regard is available in the Appeal records. We shall accordingly desist from companymenting on whether the various heads of fee are excessive, thereby metamorphosing them from a fee to a tax. The fact that the export permit fee was reduced from Rs. 10 to Rs. 3 and finally to Re. 1 per bulk litre indicates that there has been due application of mind by the Respondent State in deciding the quantum of fee. 6 In deciding the vires of Rule 15, the discussion must companysider the distinguishing features between a fee and a tax. An analysis of the Judgments of this Court will reveal that, inter alia, a tax is levied as part of a companymon exaction, whereas a fee is payment towards services rendered. Thus a fee ostensibly companylected to prevent nefarious activities such as smuggling and companyntryside brewing, which have numbercausal companynection with the production of industrial alcohol, would thus metamorphose into a tax. It appears to us that that the State Government has number undertaken any supervisory activity which would companystitute a quid pro quo for the imposition of the export permit fee charged under Rule 15 3 i . Any expenses incurred on such supervisory or administrative activity has perforce already been recovered or reimbursed from fees on account of storage or sale transactions on industrial alcohol. These dues paid by the Appellants are channelled towards preventing the illegal activities of unrelated third parties for which the Appellants are in numberway responsible. It is evident that the intention behind this fee is to prevent manufacturers from exporting industrial alcohol to breweries of potable alcohol in other States that would fetch them a better price than producers of other products within their own State. It is thus clearly, in reality, a tax. Rule 15 2 , which holds that export will only be allowed if there is a surplus in the State evidences the apprehension of the State Government that it may run short of industrial alcohol. This sub-Rule, as well others such as Rule 15 1 which imposes the requirement of an export permit and Rule 15 3 ii which adds the requirement of an indemnity bond, are also outside the jurisdiction and powers of State Governments, as their purpose is clearly number to prevent industrial alcohol from being diverted and companyverted to potable alcohol their purpose is to regulate, companytrol and discourage the export of industrial alcohol. The imposition of a tax to regulate export under its own head is entirely feasible, if introduced by the companypetent authority, i.e. the Union Government as held in Synthetics Chemicals Limited. However, this is number the scenario before us, both for the want of vires and for the ambiguity behind the intention of this Rule. The Respondent State has given numberexplanation to justify this Rule, and has number shown any service rendered in return. 7 We uphold the 1971 Rules and find that the Respondent State had the power to enact these Rules. However, we strike down Rule 15 dealing with the export of rectified spirit, finding that it imposes a tax, number a fee, on the Appellants and is outside the Respondent States legislative companypetence. |
N. Variava and H.K. Sema, JJ. This appeal is against an order passed by the High Court of Karnataka dismissing the review petition. Briefly stated the facts are On 6.11.1986 an accident took place. The claimants filed a claim before the Motor Accidents Claims Tribunal. The insurance companypany disputed the claim, inter alia, on the ground that the vehicle was number insured and the driver has numbervalid licence. During evidence, a companyy of the insurance policy was marked as Exh. R-1 by companysent of the parties. The appellant herein also companysented to that companyy being so marked. The Tribunal, therefore, held that the vehicle was insured and passed an award against the insurance companypany. The insurance companypany filed an appeal, inter alia, on the ground that as per the terms of the policy, the liability is limited to Rs. 50,000. The High Court allowed that appeal on the basis of the policy marked as Exh. R-1. The Special Leave Petition, filed against the order of the High Court, was dismissed by this companyrt. Thereafter, appellant filed a review before the High Court. They produced some other policy which did number companytain the clause restricting liability. The High Court has companyrectly dismissed the review petition. The High Court has companyrectly held that there was numberfraud because the policy which was before the companyrt at all stages was the one which had been marked as Exh. R-1. The High Court has also held that the liability was limited on the basis of the premium which had been paid. Hence this appeal. We see absolutely numbersubstance in this appeal. If a party has in its custody or possession a document which is relevant, it is the duty of that party to produce the document at the very first stage. Appellant companyld number deny that the policy was always with him. There was numberhing which prevented him from producing it before the Tribunal. Had he produced a policy which was different from the one produced by the insurance companypany, the Tribunal companyld have ascertained on evidence which was the companyrect policy. The appellant companysented to the companyy being produced by the insurance companypany being marked as an exhibit. Further there is absolutely numberexplanation, why, when the insurance companypany sought to limit its liability in appeal, this policy was number produced. Producing this policy for the first time in the review petition cannot be ground to review the earlier order. |
SMT. RANJANA PRAKASH DESAI, J. The appellant - Punjab Sind Bank for short, the plaintiff-bank has challenged in this appeal, judgment and order dated 4/6/2003 passed by the Kerala High Court whereby the appeal filed by original defendants 1, 2, 4, 7 and 8 challenging the judgment and decree of the Ist Additional Sub-Judge, Ernakulam, decreeing the plaintiffbanks suit for realization of money was allowed. The title of the proceedings underwent changes during the companyrse of time on account of death of some of the partners and or guarantors and also on account of orders passed by the companyrts. There are also certain typographical errors in the amended cause title of the appeal. It is number necessary for us to give details of various changes which were brought about in the title. Suffice it to say that respondent 1 herein is the partnership firm i.e. original defendant 1 and the other respondents are either its partners and or heirs of the partners or guarantors and or heirs of the guarantors. By order dated 29/1/2003, the High Court has added the Kerala State Electricity Board for short, KSEB as respondent 6 and it is respondent 10 herein. We shall, however, for the sake of companyvenience refer to the parties as per their status in the trial companyrt. At the outset, we must make it clear that we have reached a companyclusion that the defendants have taken a dishonest stand to evade the liability to make payment to the plaintiff-bank. At the companyt of making this judgment prolix, we need to make a detailed reference to the pleadings of the parties because our companyclusion, to a large extent, is substantiated by the pleadings. The facts, as disclosed by the plaintiff-bank in the plaint, are as under Defendant 1 is a partnership firm engaged in the business of engineering works and defendants 2, 3 and 4 are its partners, who undertook the execution of certain civil engineering works awarded to them by KSEB. As per the terms of the tender, defendants 1 to 4 had to furnish Bank Guarantees to KSEB. They approached the plaintiff-bank for issuance of Bank Guarantee for an aggregate amount of Rs.20 lakhs on their behalf in favour of KSEB. The plaintiff-bank agreed to do so on certain terms and companyditions. Defendants 1 to 4 accepted the said companyditions. The plaintiff-bank on 11/5/1983 executed and offered a Bank Guarantee on behalf of defendant 1 to KSEB for Rs.1 lakh as and by way of security deposit as per the terms of the tender. Thereafter, the plaintiff-bank on 24/6/1983 further executed and offered on behalf of defendant 1 another Bank Guarantee of Rs.19 lakhs to enable defendants 1 to 4 to avail of the amount of Rs.19 lakhs as mobilization advance from KSEB for the purpose of execution of the work undertaken by defendant 1. According to the terms of the Bank Guarantee dated 11/5/1983, the amount of Bank Guarantee number exceeding Rs.1 lakh was payable to KSEB on demand at any time during its currency without any demur. In companysideration of the aforementioned Bank Guarantee, defendant 1 by its partners i.e. defendants 2, 3 and 4 agreed and undertook to indemnify the plaintiff-bank by a Deed of Indemnity and Guarantee dated 11/5/1983 together with all companyts and charges which may be incurred or become payable by the plaintiff-bank in companynection with the Guarantee given to KSEB. As further security, defendants 2, 3, 4, 5, 6, 7 and 8 also undertook and agreed to indemnify the plaintiff-bank from and against all claims, demands, losses, charges and expenses which the plaintiff-bank may sustain in respect of any liability incurred by it and also guaranteed to make payment of the amount together with interest, companyts, companymission and charges payable thereon by the plaintiff-bank. As security for the aforementioned Bank Guarantee of Rs.1 lakh, defendant 2 deposited the title deeds of his property situated in Kottayam Village on 11/5/1983. He companyfirmed the deposit of title deeds by memorandum of deposit of title deeds. Defendant 5 as security for the aforementioned Bank Guarantee deposited the title deeds of her properties companyprised in Survey No.10/6/2 situated in Kottayam Village with intent to create a security thereon by way of mortgage in favour of the plaintiff-bank on 11/5/1983, at the plaintiffbanks office at M.G. Road, Ernakulam in the City of Kochin. Defendant 5 also companyfirmed the deposit of title deeds by Memorandum of deposit of title deeds executed on 11/5/1983. Defendant 6 through his power of attorney holder - defendant 4, deposited the title deeds of his property companyprised in Survey No.983/5 of Ernakulam Village with intent to create a security by way of mortgage in favour of the plaintiff-bank on behalf of defendant 1. He executed a Memorandum companyfirming the said deposit of title deeds through his agent and power of attorney holder. Defendants 7 and 8 also deposited with the plaintiff-bank on 11/5/1983 at their Branch at G. Road, Ernakulam the title deeds of their properties companyprised in Survey No.51/9B of Vijayapuram Village in Kottayam Taluka with intent to create a security thereon by way of mortgage in favour of the plaintiff-bank. Defendants 7 and 8 also companyfirmed the said deposit of title deeds of their properties by executing Memoranda of deposit of title deeds. Defendant 4 charged and assigned the fixed deposit receipt for the sum of Rs.25,000/- in favour of the plaintiff-bank as per the security for the said amount of the Guarantee. In the trial companyrt the plaintiff bank produced the Deed of Indemnity and Guarantee executed by defendants 2, 3 and 4 with a companyy of the Bank Guarantee for Rs.1 lakh, the Deed of Indemnity and Guarantee executed by defendants 2, 3, 4, 5, 6, 7 and 8 as further security, title deeds deposited by defendant 2 as security by way of equitable mortgage in favour of the plantiff-bank in respect of Bank Guarantee of Rs.1 lakh, Memorandum dated 11/5/1983 executed by defendant 2 companyfirming the deposit of the said title deeds, title deeds deposited by defendant 5, the Memorandum dated 11/5/1983 executed by defendant 5 companyfirming deposit of title deeds and Memoranda of deposit of title deeds executed by defendant 6 through his Power of Attorney holder defendant 4 and by defendants 7 8 companyfirming the deposit of title deeds of their properties. Defendant 1 wanted to avail of a mobilization advance of Rs.19 lakhs from KSEB. KSEB, as security for such payment of mobilization advance, required defendant 1 to furnish Bank Guarantee for the amount of Rs.19 lakhs. Defendant 1 requested the plaintiff-bank to furnish the Bank Guarantee in favour of KSEB for the amount of Rs.19 lakhs. The plaintiff-bank agreed to furnish the said Bank Guarantee on certain companyditions which defendant 1 accepted. Accordingly, the plaintiff-bank executed and offered the Bank Guarantee on behalf of defendant 1 to KSEB for the sum of Rs.19 lakhs. According to the said Bank Guarantee, the sum of Rs.19 lakhs was payable to KSEB on demand by the Chief Engineer Civil General at any time, during the currency including the period companyered by its extension without any demur and on a mere demand. The Guarantor had agreed that such demand made on the plaintiff-bank shall be companyclusive as regards the amounts due and payable under the Bank Guarantee and the Guarantor had to make the payment without any demur. As companysideration for giving the said Bank Guarantee, defendant 1 by its partners viz. defendants 2, 3 and 4 undertook to indemnify the plaintiff-bank by a Deed of Indemnity and Guarantee from all claims, amounts, charges, damages and expenses which may be caused or sustained by the plaintiff-bank or for which it may become liable by reason of having given the said Bank Guarantee. It was also specifically agreed that in companynection with the said Guarantee, the plaintiff-bank without going into the question whether the terms of the agreement or any obligations with the Chief Engineer Civil General or KSEB had been fulfilled or number on numberice of demand from the beneficiary of the Guarantee, was entitled in its own absolute discretion to make payment of the whole or part of the amount of the Guarantee as may be called upon to do so by KSEB without any reference to the defendants and that the defendants shall number have any right to question in any way whatsoever the making of such payment by the plaintiff-bank. As further security, defendants 2 to 8 also undertook to indemnify the plaintiff-bank from and against all claims, demands, loss, charges and expenses which the plaintiff-bank may sustain or incur in respect of any liability incurred or might be incurred and guaranteed to make payment on demand of the amount of the Guarantee together with interest, companymission, companyts and charges payable thereon by the plaintiff-bank. As further security for the aforementioned Bank Guarantee of Rs.19 lakhs, defendants 2, 5, 6, 7 and 8 extended and created the mortgage by deposit of title deeds of their respective properties which were already charged and mortgaged in favour of the plaintiffbank to companyer and apply to the pecuniary liability in respect of the amount of Rs.19 lakhs together with companyts, charges, interests, etc. to the plaintiffbank. The said defendants further declared at their personal visit to the plaintiff-banks branch on 24/6/1983 that the mortgage by deposit of title deeds already created on their respective properties on 11/5/1983 shall also apply and stand extended to and companyer the further Bank Guarantee of Rs.19 lakhs also. The said defendants companyfirmed by Memoranda dated 24/6/1983 the deposit of the title deeds creating the mortgage of their respective properties in favour of the plaintiff-bank and, thereafter, applying and extending the security by way of mortgage of deposit of title deeds for the Guarantee of Rs.19 lakhs. Defendant 1 charged and assigned the fixed deposits for the sum of Rs.4,75,000/- which amount was deposited with the plaintiff-bank as security for the aforementioned facility or liability incurred by the plaintiff-bank. The plaintiff-bank produced in the trial companyrt the Deed of Indemnity and Guarantee executed by defendants 2, 3 and 4 together with a companyy of Bank Guarantee of Rs.19 Lakhs, the Deed of Indemnity and Guarantee executed by defendants 2, 3, 4, 5, 6, 7 8 as further security and the Memoranda dated 24/6/1983 of deposit of title deeds of various properties executed by the defendants companyfirming deposit of title deeds of their properties. Defendant 1 availed of Rs.19 lakhs as mobilization advance from the KSEB on the strength of the second Guarantee mentioned hereinabove. KSEB by its letter dated 19/6/1984 called upon the plaintiff-bank under Clause 5 of Deed of Guarantee to pay a sum of Rs.19 lakhs being the full amount of the said Guarantee to KSEB. The plaintiff-bank informed defendant 1 by telephone, telegram and by letter about the invoking of the Bank Guarantee by KSEB and called upon defendant 1 to remit Rs.19 lakhs with interest at 18.5 per annum immediately in terms of companynter Guarantee executed by them to enable the plaintiff-bank to make payment to KSEB. KSEB insisted upon companypliance with its demand in accordance with Clause 5 of the Bank Guarantee. The plaintiff-bank was bound to pay the sum of Rs.19 lakhs being the amount of the second Bank Guarantee and accordingly the plaintiff-bank paid the said amount by way of Demand Draft dated 23/6/1984 to KSEB. The plaintiff-bank called upon the defendants to pay the amount of the Bank Guarantee of Rs.19 lakhs. The defendants gave assurances that the amount would be paid but did number make any payment. The plaintiff-bank, therefore, appropriated a sum of Rs.4,56,962.80 being the balance amount of the fixed deposit after adjusting the over paid interest on the fixed deposit. After appropriating and adjusting the said amount, a sum of Rs.14,43,037.92 together with interest at 20 per annum remained due and payable by the defendants in respect of the second Bank Guarantee as on 24/5/1986 being the date on which the suit was filed by the plaintiff-bank. Defendant 1 requested the plaintiff-bank to extend the Bank Guarantee in favour of KSEB for Rs.1 lakh executed on 11/5/1983 for a further period of one year from 11/5/1984 till 11/5/1985. The plaintiff-bank, accordingly, extended the said Bank Guarantee upto 11/5/1985. It appears that the KSEB terminated the companytract given to defendant 1 on account of breach of the terms and companyditions of the companytract. KSEB by its letter dated 15/10/1984 called upon the plaintiff-bank to pay a sum of Rs.1 lakh being the amount of the first Bank Guarantee executed by the plaintiffbank on behalf of defendant 1 to KSEB. The plaintiff-bank, in turn, intimated to defendant 1 and called upon them to remit the said amount. However, the defendants did number make the payment. The plaintiff-bank had to pay to KSEB a sum of Rs.1 lakh on 5/8/1985 by Demand Draft as per the terms of the Bank Guarantee. Thus, in all, the plaintiff-bank had to pay Rs.20 lakhs in aggregate under two Bank Guarantees furnished on behalf of defendant 1 to KSEB. Since despite letters, numberices and repeated requests, the defendants did number pay the balance amount, the plaintiff-bank filed a suit in the Court of 1st Additional Sub-Judge at Ernakulam for an amount of Rs.21,54,464.20 with future interest from 1/5/1986 at 20 per annum. In their joint written statement, defendants 1, 2 and 4 did number deny the issuance of Bank Guarantees by the plaintiff-bank, but denied the dates thereof. They put the plaintiff-bank to proof regarding the dates of the said Guarantees as, according to them, the dates were within the knowledge of the plaintiff-bank only. They admitted that for the purpose of Guarantees furnished by the plaintiff-bank on behalf of defendant 1-firm, defendant 1-firm deposited 25 of the amount in cash with the plaintiff-bank. They, however, denied that any mortgage was created in favour of the plaintiff-bank by any one of the defendants. They denied the execution of documents referred to in the plaint. They did number admit the Deed of Indemnity and Guarantee dated 11/5/1983 but stated that the Managing Partner of defendant 1 had given a power of attorney in favour of the plaintiff-bank authorizing the plaintiff-bank to adjust 5 of the bill amount due to defendant 1 from KSEB through the plaintiff-bank and, the amount so withheld was allowed to be held as security by defendant 1 in case KSEB invoked the Bank Guarantee. They denied that defendants 2 to 8 went to the plaintiff-bank on 11/5/1983 to deposit the title deeds of their properties. It was, however, admitted that defendant 4 had by his letter dated 4/4/1983 forwarded to the plaintiff-bank title deeds of the properties described in the Schedule for the purpose of scrutiny. They admitted that on the insistence of KSEB to furnish the Bank Guarantee, the plaintiff-bank was requested to furnish Bank Guarantee of Rs.19 lakhs in favour of KSEB. They put the plaintiff-bank to proof regarding the terms and companyditions of the said Bank Guarantee. Securities and Deed of Indemnities were number admitted. They denied that any of the defendants went to the plaintiff-bank on 24/6/1983 to make any declaration. They admitted the assignment of fixed deposit of a sum of Rs.4,75,000/-. They admitted that mobilization advance of Rs.19 lakhs was availed of by defendant 1. They, however, stated that it was number availed of on the strength of Bank Guarantee but the basis thereof was supplementary agreement executed between KSEB and defendant 1 in which, there was numberstipulation to furnish any Bank Guarantee. They put the plaintiff-bank to proof regarding the amounts which are said to have been paid by it to KSEB. They denied their liability to pay the amount to KSEB since, according to them, the invocation of Bank Guarantee and the alleged payment made by the plaintiffbank was number done in terms of the Guarantee and also because according to them KSEB had illegally terminated the companytract. They companytended that the appropriation of Rs.4,56,962.80 is illegal and the plaintiff-bank had numberright to reduce the rate of interest to 5 on the amount deposited by defendant 1. They denied that the plaintiffbank had extended the Bank Guarantee of Rs.1 lakh for a further period of one year in favour of KSEB. They companytended that defendant 1 had already filed a suit for recovery of an amount of Rs.19 lakhs and interest thereon against the plaintiff-bank for illegal reversal cancellation of entry of the amount which was already credited in the account of defendant 1. According to these defendants, the story regarding companyntermanding of the cheque was created for the purpose of escaping the liability to pay the amount to defendant 1. Defendants 6 to 8 filed joint written statement companytending that they are number partners of defendant 1-firm and they are number companycerned with the Bank Guarantees. They denied that they had created equitable mortgage in respect of their properties in favour of the plaintiff-bank. They denied the execution of Deed of Indemnity and Guarantee dated 11/5/1983 and their alleged visit to the plaintiff-bank on 11/5/1983. They companytended that defendant 4 had forwarded the title deeds of their properties to the plaintiff-bank only for scrutiny. They companytended that the plaintiff-bank had taken blank signed papers from them on or about 11/5/1983 when the first Bank Guarantee for Rs.1 lakh was issued in favour of KSEB and these signed blank papers were utilized for creating equitable mortgage, indemnity, guarantee and other documents. According to these defendants, the said documents are number genuine but are fabricated subsequently on the blank signed papers obtained from them. Though initially, defendants 1, 2 and 4 did number allege that the plaintiff-bank had fabricated any documents they subsequently amended their written statement and companytended that the plaintiff-bank had taken blank signed papers from them on 11/5/1983 when the first Bank Guarantee for a sum of Rs.1 lakh was issued in favour of KSEB. These papers were used for the purposes of creating documents in favour of the plaintiff-bank. They companytended that all the documents like companynter guarantees, companyfirmation of deposit of title deeds, etc. more particularly described in paragraph 2 of the plaint were fabricated by the plaintiffbank by utilizing some of the said signed blank papers and, therefore, they are number binding on the defendants. By judgment and order dated 1/1/1991, the trial companyrt decreed the suit. It directed the defendants to pay Rs.19,00,000/- with interest at the rate of 18.5 per annum from 23/6/1984 till date of the suit with future interest on Rs.14,43,037.20 Rs.19,00,000/- minus Rs.4,56,962.80 adjusted by the plaintiff-bank at the rate of 18.5 per annum from the date of suit till realization. The trial companyrt further directed the defendants to pay to the plaintiff-bank Rs.1,00,000/- with interest at the rate of 18.5 per annum from 15/10/1984 till realization. The trial companyrt held that the plaintiff-bank is entitled to realize the above amounts and companyts by sale of the properties shown in the Schedule to the plaint and directed that, in case, the plaintiff-bank is unable to realize the full amounts due to it by sale of the hypothecated properties, the plaintiff-bank will have the right to proceed against defendants 2 to 4 personally and against the assets of defendants 1 to 4 to realize the balance amounts due to it. Being aggrieved by the said decree, defendants 1, 2, 4, 7 and 8 preferred an appeal in the High Court. By the impugned order, the High Court allowed the appeal. The High Court, inter alia, held that since the originals of the Bank Guarantees were number produced by the plaintiff-bank, the plaintiff-bank cannot successfully lay its claim on the said two Bank Guarantees. The plaintiff-bank has challenged the said judgment and order in this appeal. We have heard learned companynsel for the parties, at some length. We have also carefully perused the written submissions filed by them. Counsel for the plaintiff-bank submitted that the High Court wrongly reversed the decree passed by the trial companyrt because the originals of the Bank Guarantees were number produced. The High Court overlooked several mterial documents produced by the plaintiff-bank and the evidence of PW-2 and PW-3, the officials of KSEB, who have deposed about the Bank Guarantees and their invocation. Pertinently, there is numberdenial of the evidence given by these witnesses. Counter Guarantees executed by the defendants and the Confirmation of deposit of title deeds by the defendants are a pointer to the genuineness of the case of the plaintiff-bank. The story that the plaintiff-bank fabricated documents on blank papers signed by the defendants is totally unpalatable. Counsel submitted that the High Court has misconstrued the provisions of the Evidence Act. Counsel submitted that in the circumstances, the impugned judgment and order needs to be set aside and the decree of the trial companyrt needs to be restored. Counsel for the defendants have reiterated the stand taken by their respective clients in their written statements, which we have extensively quoted hereinabove. They have banked on the fact that the originals of the Bank Guarantees are number produced. Relying on J. Yashoda v. K. Shobha Ra ni1 and Roman Catholic Mission v. State of 1 2007 5 SCC 730 Ma dras2 , it is companytended that if the original of a document is number available, then secondary evidence must be led by laying down foundation for leading secondary evidence in terms of Section 65 of the Evidence Act which the plaintiff-bank has number done in this case. Counsel companytended that in any case, even the photocopy of Bank Guarantee dated 11/5/1983 Ex-A19 and Bank Guarantee dated 24/6/1983 appended to the Counter-Guarantee of the same date Ex-A16 are incomplete and, therefore, they cannot be companysidered as secondary evidence. Drawing our attention to Section 91 of the Evidence Act, companynsel submitted that in the circumstances, numberother evidence including the statement of witnesses can be used by the plaintiff-bank to prove the execution of the Bank Guarantees. Counsel submitted that it is number stated in the plaint in whose possession the original documents were and, hence, there is violation of the procedure prescribed under Order VII Rule 14 of the Code of Civil Procedure. Relying on Hindustan Construction Co. 2 AIR 1966 SC 1457 Ltd. State of Bihar Ors.3 , companynsel submitted that invocation of Bank Guarantees is illegal because the Bank Guarantees can be invoked only by the person named therein. In this case, according to the defendants, the Bank Guarantees are invoked by the Secretary, KSEB when, in fact, they should have been invoked by the Chief Engineer Civil , General, who is named in the Bank Guarantees. Counsel submitted that whereas in the plaint, it is submitted that the Bank Guarantees were invoked by Secretary, KSEB, reliance is placed on Ex-A82 and Ex-A3 which are letters dated 14/11/1983 and 9/5/1984 respectively written by the Chief Engineer allegedly invoking the Bank Guarantees. Counsel submitted that since these letters are number referred to in the plaint, they cannot be relied upon. Relying on State of Maharashtra v. Dr. M.N. Kaul4 , companynsel submitted that Bank Guarantee Ex-A19 dated 11/5/1983 was number enforceable as it was invoked after it had expired. Counsel relied on Delhi Development Authority v. 3 1999 8 SCC 436 4 AIR 1967 SC 1634 Skipper Construction Co. P Ltd. Anr.5 , where in the companytext of issuance of Bank Guarantees, this companyrt directed inquiry to ascertain loss suffered by the public sector banks on account of malfeasance and misfeasance of their officials. Counsel submitted that the Counter Guarantees, Indemnity Bonds, Confirmation Letters and Memorandum of deposit of title deeds on which reliance is placed are of numberuse to the plaintiff-bank because they are number companyplete documents. Therefore, they do number prove creation of equitable mortgage by deposit of title deeds. Counsel submitted that it is alleged that defendant 9 had, through power of attorney holder - defendant 6, created equitable mortgage of his property. This is, however, incorrect inasmuch as the power of attorney dated 21/4/1983 clearly shows that it was given for availing housing loan and number for depositing the title deeds in support of the Bank Guarantee. Relying on Syed Abdul Khader v. Rami Reddy6 , it was 5 2003 1 SCC 547 6 1979 2 SCC 601 submitted that the power of attorney has to be given strict interpretation. In short, companynsel companytended that numberinterference is necessary with the impugned order. The High Court has number-suited the plaintiff-bank primarily on the ground that the plaintiff-bank has number produced originals of the Bank Guarantees and it has number adduced any secondary evidence after giving explanation as to the number-production of the originals Roman Catholic Mission . The High Court has observed that the Bank Guarantees produced by the plaintiff-bank are number companyplete and, therefore, the terms and companyditions thereof and rights and liabilities of the parties arising therefrom cannot be ascertained. The High Court has also held that as per the companyies of the Bank Guarantees produced on record, they companyld be invoked only by the Chief Engineer Civil General, however in this case, they were invoked by the Secretary, KSEB. Therefore, the invocation is illegal Hindustan Construction Co. Ltd. and Dr. M.N. Kaul . The High Court has number accepted the case of the plaintiff-bank that the Bank Guarantees were invoked vide plaintiff-banks letters Ex-A4 and Ex-A82 . It is observed that these documents create suspicion about the manner in which the Bank Guarantees are executed. The High Court has observed that the Counter Guarantees produced by the plaintiff-bank are incomplete. The High Court was impressed by the case of the defendants that the title deeds were forwarded to the plaintiff-bank for scrutiny and it virtually companye to the companyclusion that there was numberdeposit of title deeds as security for the Bank Guarantees. It was impressed by the defendants case that the plaintiff-bank had companycocted the documents. We need to ascertain how far the defendants case is truthful. They admit the plaintiff-banks basic case, but try to evade their liability to pay through their inconsistent, companytradictory and evasive stand. From the narration of the written statements of the defendants, it is clear that so far as defendants 1, 2, 3 and 4 are companycerned, they have clearly admitted issuance of the Bank Guarantees. They have admitted that for the purpose of Bank Guarantees furnished by the plaintiff-bank on behalf of defendant 1-firm, defendant 1-firm has deposited 25 of the amount in cash with the plaintiff-bank. Instead of companying out with the companyrect facts surprisingly, they have put the plaintiff-bank to the proof regarding the dates and terms and companyditions of the Bank Guarantees companytending that the dates were within the knowledge of the plaintiff-bank only. They have also put the plaintiff-bank to the proof regarding the amounts which have been paid to KSEB. Their version about the execution of bank guarantees is hard to digest. They have denied that any mortgage was created in favour of the plaintiff-bank and they companytended that they do number admit the Deed of Indemnity and Counter Guarantee dated 11/5/1983 but stated that the Managing Partner of defendant 1 had given a power of attorney in favour of the plaintiff-bank authorizing the plaintiff-bank to adjust 5 of the bill amount due to defendant 1 from KSEB through the plaintiff-bank and the amount so withheld was allowed to be held as security by defendant 1 in case KSEB invoked the Bank Guarantee. It is pertinent to numbere that though they have denied that defendants 2 to 8 went to the plaintiff-bank on 11/5/1983 to deposit the title deeds of their properties, they have admitted that defendant 4 had by his letter dated 4/4/1983 forwarded the title deeds of his properties to the plaintiff-bank. Their case, however, is that the title deeds were sent for scrutiny. It is number understood for what purpose the scrutiny of the title deeds was necessary and done. They admitted the assignment of Fixed Deposit Receipts in the sum of Rs.4,75,000/- and availment of mobilization advance of Rs.19 lakhs by defendant 1, but stated that it was number availed of on the strength of Bank Guarantees but the basis thereof was supplementary agreement executed between KSEB and defendant 1 in which, there was numberstipulation to furnish any Bank Guarantee. This case is number substantiated by them. Though they initially did number companye out with a case that the plaintiffbank fabricated any document, they subsequently amended the written statements and companytended that the plaintiff-bank had taken blank signed papers from them on 11/5/1983 when the first Bank Guarantee was issued in favour of KSEB and these papers were used for fabricating the documents in favour of the plaintiff-bank. They companytended that all the documents were fabricated by the plaintiff-bank by utilizing the signed blank papers taken from them by the plaintiffbank. Thus, they denied that any equitable mortgage was created as security for the Bank Guarantees. Similarly, defendants 6 to 8 denied that any equitable mortgage was created. They came out with the case that the Deeds of Indemnity, Counter Guarantees, Memoranda of deposit of title deeds and Confirmation Letters were fabricated by the plaintiff-bank by using the blank signed papers taken from them on or about 11/5/1983 when the first Bank Guarantee for Rs.1 lakh was issued in favour of KSEB. The defendants case regarding blank signed papers is number substantiated by any evidence except their say so. The trial companyrt has rightly rejected this story and we companycur with the trial companyrt. Apart from the fact that there is numberhing on record to establish the case of the defendants that the plaintiff-bank was party to such a fraud of creating fabricated documents after obtaining blank signed papers from the defendants, it also does number stand to reason that the defendants and its partners and other defendants are so gullible as to hand over to the plaintiff-bank several signed blank papers. Falsity of their case is seen from the documents on record. The title deeds are at Ex-A39 to Ex-A43, Ex-A45 to Ex- A48, Ex-A53, Ex-A54 and Ex-A63. The tax and revenue receipts relating to the properties are at Ex-A57 to Ex-A62, Ex-A65 and Ex-A67. Encumbrances certificates upto April, 1983 are at Ex-A44, Ex-A49, Ex-A50, Ex-A51, Ex-A55, Ex- A56, Ex-A64 and Ex-A66. Confirmation letters regarding deposit of title deeds are at Ex-A24, Ex-A30, Ex-A34 and Ex- A72. We have carefully perused these letters. It is impossible to companye to a companyclusion that the plaintiff-bank has fabricated these letters on the blank signed papers allegedly given to it by the defendants. There is numbermanner of doubt that they are genuine documents. There are Memoranda of deposit of title deeds duly signed by the defendants giving details of the properties. They are at Ex- A9 to Ex-A15, Ex-A22, Ex-A23, Ex-A25, Ex-A26, Ex-A28, Ex- A29, Ex-A32 and Ex-A33. We have seen these exhibits also. We are companyvinced that they are genuine documents. The defendants have number been able to give any valid acceptable explanation as to how so many original title deeds came in the custody of the plaintiff-bank. Pertinently, the trial companyrt has numbered that defendant 1 has filed O.P. No.62 of 1986 in the Sub-Court at Ernakulam against the plaintiff-bank for recovery of Rs.18,99,900/-. In the schedule of properties under the heading assets of the partners, it is clearly stated that these properties are mortgaged to the Bank as security for Bank Guarantee of Rs.20 lakhs. The trial companyrt has further numbered that when DW-1 was companyfronted with this fact, he had numberreply. At the companyt of repetition, it needs to be stated that it is the case of defendants 6 to 8 in their written statement that they are number partners of defendant 1 they have numberconnection with the Bank Guarantee and, hence, there is numberquestion of there being any equitable mortgage that the original title deeds were only given for scrutiny and that the plaintiff-bank had taken blank signed papers from them when the first Bank Guarantee for Rs.1 lakh dated 11/5/1983 was taken. This explanation itself falsifies the case of defendants 6 to 8. They have admitted that the first Bank Guarantee of Rs.1 lakh dated 11/5/1983 was executed. Even assuming without admitting that some blank papers with their signatures were taken by the plaintiff-bank from them, unless they were companycerned with the Bank Guarantee, such documents would number be demanded from them number would they have given such documents to the plaintiff-bank. Their efforts to disassociate themselves from defendant 1-firm and the Bank Guarantees cannot, therefore, be companyntenanced. It is equally impossible to accept that these documents were taken for scrutiny by the plaintiff-bank. None of the defendants have successfully explained why and for what purpose, the scrutiny of their documents was necessary. We companycur with the trial companyrt that all these documents cut at the very root of the defence regarding the number-existence of the equitable mortgage. The case of the defendants that there was numberequitable mortgage will have to be, therefore, rejected. The defendants companytention that the plaintiff-bank illegally encashed the Fixed Deposit Receipts in the sum of Rs.4,75,000/- must also be rejected. It is the plaintiffbanks case that this amount was deposited as security for the Bank Guarantee of Rs.19 lakhs availed of by the plaintiff-bank and the liability incurred by it. The defendants companytend that the said Fixed Deposit Receipts were given to the plaintiff-bank for safe custody. Against the background of the aforementioned facts, the story that the Fixed Deposit Receipts were deposited with the plaintiff-bank for the purposes of safe custody, does number stand to reason. Except for oral evidence, there is numberhing on record to substantiate this case. In the facts of this case, we have numberhesitation in rejecting this case of the defendants. In our opinion, the said Fixed Deposit Receipts have rightly been encashed by the plaintiff-bank. So far as invocation of Bank Guarantees is companycerned, in our opinion, there is numberinfirmity in the case of plaintiffbank. It is true that in the plaint, there is a reference to Ex- A4 and Ex-A7, which indicates that the invocation is done by the Secretary of KSEB but when an objection was raised by the defendants that the invocation was number proper, the plaintiff-bank has produced Ex-A82 and Ex-A3 which show that the invocation was done by the Chief Engineer Civil General as per the terms of the Bank Guarantees. It is significant to numbere that Ex-A4 is subsequent to Ex-A82 and relates to Bank Guarantee of Rs.19 lakhs and Ex-A7 is subsequent to Ex-A3 and relates to Bank Guarantee of Rs.1 lakh. The trial companyrt has rightly held them to be genuine documents. The invocation of Bank Guarantees was also done when they were in force, in view of their extension. Perhaps the most significant piece of evidence which has number been numbericed by the trial companyrt and though referred to by the High Court but number appreciated by it, is the letter dated 7/7/1984 Ex-A6 in which the Managing Partner of defendant 1 has admitted execution of Bank Guarantees and expressed willingness to pay the amount. This is a letter written by defendant 1 to the plaintiff-bank in response to the demand numberice dated 23/6/1984 issued to defendant 1. DW-1 in his evidence has admitted that the said letter Ex-A6 was written by defendant 1. We deem it appropriate to quote the said letter entirely. In response to the demand numberice dated 23-6-1984 issued to me and after prolong discussion with the officials companycerned, we give you this reply placing certain companyditions and suggestions for a smooth banking transaction between us. A bank guarantee for a sum of Rs. 19,00,000/- was arranged by you for a companytract work which we have entered into with the K.S.E.Board Kakkad Hydro Electric Tunnel Project, companyting Rs. 6.5 Crores . The work is going on in a full swing and for the companytinuation of the work we have invested a huge amount for the purchase of machineries and other things. It is relevant to state here that the companytract is for a sum of Rs.6.5 crores. Unfortunately, allegations were levelled against the companycerned Minister regarding this companytract and this matter as referred for a finding before Justice Janaky Amma Commission. The Commission came to the companyclusion that all the charges levelled against the Minister were false. Not satisfied with this finding, the opposition parties of the Kerala Legislative Assembly have number raised certain questions regarding this matter in the Assembly. All allegations levelled against the Minister was regarding allowing a sum ofRs.19,00,000/- as mobilization advance. As per the agreement, we have entered into with the K.S.E.Board, we are entitled to get a sum of Rs.20 lakhs. To be immune from the allegations the Board has withdrawn the amount advanced to us without even issuing a numberice either to us or to the Bank. We companyld have approached before a civil companyrt and obtained a stay, but we avoided it only to maintain a good relationship with KSEB for a smooth execution of the companytract. Now you have issued a numberice asking us to remit the outstanding amount of Rs. 14,43,037.92. Since we have invested a huge amount and since we want to proceed with the work and since we have number so far as received any amount from the department for the work we have done till the date, we are number number in a position to remit the entire amount. As per the companyclusion of the discussion with the bank officials on 6-7- 1984, we hereby undertake to remit 10 of the amount of every bill from our companying running part payments. To face the financial situation, we have reconstituted our partnership by including new partners who are substantially rich and well experienced in the field of companytract work and by way of increasing the capital. Now we are approaching you for an clean over-draft for a sum of Rs. 20,00,000/- Rupees Twenty Lakhs only and for sanctioning it we are prepared to give sufficient additional securities the bank requires. Being an outstanding companytract, without this much of amount we cannot proceed with the work and only to face this circumstance we make this request and it is just from the part of the bank to sanction our request. We hereby make a suggestion that we would make arrangements from some sources to deposit a substantial amount to the bank. We make this arrangement to face the financial companydition, if any, of the bank. Hence, it is prayed that in the circumstances mentioned above, your goodself may be pleased to make immediate arrangements to sanction the request we have made above. In this letter defendant 1 has accepted the case of the plaintiff-bank and undertaken to remit 10 of the amount of every bill from the running part payments receivable by it. Once defendant 1 admits execution of the Bank Guarantees and expresses its desire to repay the amount and when Counter Guarantees, number of title deeds, encumbrance certificates and companyfirmation letters are on record, in the facts of this case, decree must follow. In our opinion, the companyduct of the defendants needs to be deprecated. After having taken the benefit of the Bank Guarantees, the defendants have tried to persuade the companyrt to absolve them of the liability to repay the amount by taking up untenable and false companytentions. In O.P. No.62 of 1986 in the schedule of properties under the heading assets of partners, defendant 1 has categorically stated that the said properties are mortgaged to the Bank as security for Bank Guarantee of Rs.20 lakhs. It is surprising that to evade their liability to make payments, defendant took a companytrary stand in this case and tried to mislead the companyrt. The trial companyrt was, therefore, right in decreeing the suit. In the circumstances, the plaintiff-bank must succeed. We must, however, express our extreme displeasure about the companyduct of the officers of the plaintiff-bank. The plaintiffbank is a nationalized bank. It is surprising how the originals of the Bank Guarantees companyld number be produced by it in the trial companyrt. Such companyduct is number expected from the officers of the plaintiff-bank who deal with public money. |
Chinnappa Reddy, J. The sole appellant was acquitted of the charge of murder by the learned Sessions Judge of Jamnagar but, on appeal by the State, he was companyvicted by the High Court under Section 302 Indian Penal Code and sentenced to suffer imprisonment for life He has preferred this appeal under the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act The case of the prosecution was that there was enmity between the family of the accused Laljibhai for various reasons. One of the reasons was that Laljibhai was alleged to have companymitted the murder of Hirji the brother of the accused. In fact on account of the disputes in the village, Laljibhai had moved to Jamnagar. About two days prior to she occurrence he had companye to the village from Jamnagar for agricultural a operations. On 9th June, 1970, at about 11 a.m he alongwith labourers, P.Ws. 3, 4 and 32 went to his field from the village At about 3.30 or 4 p.m they started to return to the village from the field. The deceased and PW 3 were in the first cart which was being driven by PW 3 PW 32 was in the next cart and P.W. 4 was in the last cats. They had to pass in front of the field of accused. When the first cars came opposite to the field of the accused, the accused who was standing at the gate jumped into the first cart from behind and stabbed Laljibhai repeatedly. The oxen were startled and started bolding. The accused got down from the cart and ran towards his field P.W 3 tried to companytrol the oxen and ultimately took the cart to the village gate. At the village gate he met Popetbhai and informed him that the accused had stabbed Laljibhai. Meanwhile Tulsidas P.W. 12 , brother of the deceased, came there and P.W. 3 told him about the occurrence. P.W 12 and his son Narottam P W 16 arranged to take the injured to the hospital at Jamnagar in a bus. Curiously enough P.W. 16, obtained a certificate from the Talati of the village Panchayat that Laljibhai was injured in an accident and that it was necessary to take him immediately to Jamnagar for treatment. P W 16 explained that she companyductor of the bus would number otherwise agree to take the injured to the hospital at Jamnagar. By the time the bus reached Jamnagar Laljibhai expired P.W 12 gave a report to P.W. 18, Deputy Police Head Constable who was on duty at the Irwin Hospital, Jamnagar, at about 8.30 p. m. This report again makes interesting reading. P.W. 12 stated in the report that P.W. 3 informed him that when the cart came opposite to the field of the accused, the accused and his brother Natha came from behind, got into the cart and both of them stabled Laljibhai with koives. P.W 12 also mentioned in the report that P.W 3 further informed him that P.W. 16 had also companye there at the time of the incident. The companyplaint of P.W. 12 was registered and the Police proceeded with the investigation. In the companyrse of the investigation it transpired that Latha the brother of the accused was number present that day in the village and, therefore, he was dropped P W. 21 the Investigating Officer expressly stated to so in his cross examining P W 12 the brother of the deceased, also admitted that after companying to know that the brother of the accused was number in the village they gave the name of she accused only. It is thus seen that at the earliest opportunity, when the First Information Report was given, it was attempted to implicate both the brothers, namely the accused and Natha, and to attribute identical act to each one of them, and that Naths name was subsequently omitted only because the investigation revealed that he was number in the village that day. Hiving regard to the circumstance that the case arose out of deep seated enmity and there was a definite attempt at false implication at the very beginning, the learned Sessions Judge thought it unsafe to place any reliance on the evidence of the prosecution witnesses. In fact before the learned Sessions Judge the Public Prosecution companyceded that P.W 4 was number a witness on whom any reliance companyld be placed. P W. 32 was number examined at the trial but was later examined during the pendency of the appeal, because of an order made by the High Court, P.W. 32 did number support the prosecution case at all. Before the Sessions Judge the Public Presecutor relied solidly on the evidence of P.W. 3 As already mentioned, the learned Sessions Judge thought that it was unsafe to set upon the prosecution evidence The learned Sessions Judge further numbericed the companyplication introduced by P W 16 the nephew of the deceased who obtained a certificate from the Talati that the deceased was injured in an accident. The learned Sessions Judge, therefore, acquitted the accused. The High Court took the view that the evidence of PWs 3 and 4 companyld be accepted number with standing the circumstance that number only the accused but his brother bad also been implicated in the First Information Report and attributed the same acts. The High Court took the view that the injuries found on the person of the deceased lent assurance to the evidence of PWs 3 and 4 and that their evidence was also companyroborated by the evidence of PW 11 who stated that he heard PW 3 declaring in the village that it was the accused that had killed Laljibhai. We have been taken through the evidence of PWs 3, 4, 11, 12, 16, 18 and 32 We are unable to say that the learned Sessions Judge had taken an unreasonable view of the evidence. The outstanding fact was that the prosecution case began with a report in which one out of the two persons named as the assaitants was admittedly falsely implicated If in the face of that report the learned Sessions Judge felt himself unable to accept the present version of the prosecution we cannot say that he took an unreasonable view warranting interference by the High Court in an appeal against an order of acquittal. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2107 of 1980. From the Judgment and Order dated 16.3.1979 of the Calcutta High Court in Appeal No. 348 of 1973. Shanker Ghosh and P.K. Mukharjee for the Appellant. B. Ahuja, Ms. A. Subhashini and Manoj Arora for the Respondents. The Judgment of the Court was delivered by MOHAN J. This appeal by certificate is directed against the judgment and order of the Calcutta High Court dated 16th March 1979 in Appleal No. 348 of 1973. The facts are that on 6th February, 1967 one Ganga Singh, governed by Mitakshara School of Hindu Law, died intestate. He left two sons, the appellant and one Binod Singh. The wife of Ganga Singh had pre-deceased him. As the appellant and Binod Singh were minor at the time of death of Ganga Singh the maternal uncle of the appellant moved an application in the City Civil Court at Calcutta in March 1967 for the appointment of guardian of the appellant and his brother. Accordingly, he was appointed as the guardian. When the paternal uncle of the appellant and his brother appealed against the order, the appointment was companyfirmed. However, the guardian was directed to companytinue till the appellant attained majority. On 7th December, 1970 the appellant attained majority. As karta he applied to the City Civil Court at Calcutta for the grant of a succession certificate in respect of the estate of Ganga Singh. It appears that the guardian never filed the account of the property or the return as required under Section 53 or 56 of the Estate Duty Act, 1953 hereinafter referred to as the Act . The appellant being a minor did number know about this. The result is that numberaccount had been filed by any person in respect of the estate of Ganga Singh within five years from the date of his death. In the proceedings before City Civil Court the grant of succession certificate it was pointed out that a certificate from Estate Duty Authority was necessary under Section 56 2 of the Act. It was urged on behalf of the appellant that in view of Section 73A of the Act the time to companymence any proceedings for levy of estate duty had become barred inasmuch as five years had expired from the date of the death of Ganga Singh. Hence, the question of production of certificate under Section 56 2 would number arise. By an order dated July 25, 1972 the learned Chief Judge of the City Civil Court held that he companyld number go into this question since the authorities companystituted under the Act alone companyld decide this. Since the appellant was advised to file an account to the Estate Duty Authority, he filed the return on 18th August, 1972 with the Assistant Controller of Estate Duty. As per the return the estate was valued approximately at Rs.52,000. The appellant was served with a numberice under Section 58 2 along with a questionnaire by the first respondent, the Assistant Controller of Estate Duty, fixing the date for hearing. On the said date of hearing the appellant companytended that numberproceedings companyld be initiated in view of the statutory bar under Section 73A, inasmuch as the period of five years had expired from the date of the death of Ganga Singh. Hence, numberproceedings companyld be companymenced. In spite of these objections, the first respondent adjourned the case calling upon the appellant to furnish certain particulars. It is under these circumstances the numberice dated 4th of September, 1972 issued under Section 58 2 of the Act along with a questionnaire and the proceedings were challenged the High Court of Calcutta by way of a writ petition in Matter No. 417 of 1972. The learned Single Judge making the rule absolute held that the impugned numberice under Section 58 2 of the Estate Duty Act, 1953, dated 4th September, 1972 was cancelled by a writ of mandamus. Aggrieved by the said order, the first respondent took up the matter in appeal. The Division Bench companysidered the scope of Section 73A vis-a-vis Section 56 and companycluded that Section 73A does number do away with the liability of an accountable person for payment of duty. It only bars the initiation of proceedings for levy of duty. Therefore, if the liability remains but proceedings cannot be initiated, there is numberquestion of full payment of duty. In such a case, it cannot be stated in the certificate by the Controller that there is numberclaim of estate duty from accountable person. Accordingly, the bar of limitation is number applicable to cases as provided under Section 73A where application is made for grant of representation or succession certificate and the account or the companyy application is delivered to the Controller as required under Section 56. Thus, this appeal by special leave. Mr. S. Ghosh, learned companynsel for the appellant would urge that the companystruction placed by the Division Bench is totally incorrect. Section 73A is companyprehensive in its scope in so far as it throws a statutory bar preventing the authority from companymencing any proceeding after the expiry of five years. Having regard to the use of words under this Act that will take within it Section 56 also. If in any case of this character the appellant is required to produce a certificate from the Controller it will be requiring him to do the impossible. In respect of his submission he would place reliance on the ruling of the Allahabad High Court in Controller of Estate Duty v. Bhola Dutt, 130 ITR 468 . That was a case when the proceeding was sought to be companymenced on the basis of a return filed by the accountable person voluntarily after five years. The High Court held that the Assistant Controller had numberjurisdiction because of the expiry of the limitation. It is that ratio which has to be adopted in this case. If the interpretation placed by the High Court is accepted it would amount to putting a premium on the laches of the authority and enabling it to do something indirectly which it cannot do even directly. The view of the High Court that numbergrant of representation or succession certificate can be made after the expiry of five year, cannot be supported. Section 56 will have to be read as to bring about a harmonious companystruction between Section 73A and Section 56. No doubt if there is numberoriginal assessment, reassessment is impossible but on the score the statutory bar under Section 73A cannot be lifted. If, as held by the High Court, Section 73A is made inapplicable where application is made for the grant of representation or succession certificate and the account or companyy application is delivered to the Controller as required by Section 56 it will be companyferring an additional power on Controller which is number in companytemplation under the Act. The strict literal interpretation will defeat the object and purpose of the statutory bar under Section 73a. In support of the submission reliance is placed on Herbert Brooms Selection of Legal Maxims QUI HAERET IN LITERA HAERET IN CORTICE Page 466 . In opposition to this, Mr. B.B. Ahuja, learned companynsel for the Revenue, companyments the acceptance of the view of the Division Bench of the High Court. When Section 56 is mandatory in character the requirement of that Section Cannot be dispensed with even by Court. The party who seeks a succession certificate or representation in Civil Court is bound to fulfil the statutory companyditions without any exception, is exactly the view taken by the Delhi High Court in P.C. Saxena v. The State, 104ITR 106 . Section 73A used the word levy. As to what exactly is mentioned by levy under the Act companyld be gathered by Padampat Singhania and other v. Controller of estate Duty, Kanpur, 122 ITR 162 at 163 . Therefore, there is numbermerit in the plea. We shall number proceed to companysider the relative merits of the respective submissions. Section 73A reads as follows 73A. No proceedings for the levy of any estate duty under this Act shall be companymenced- a in the case of a first assessment, after the expiration of five years from the date of death of the deceased in respect of whose property estate duty became payable and b in the case of a re-assessment, after the expiration of three years from the date of assessment of such property to estate duty under this Act. A careful reading of the above Section discloses the following For the levy of any estate duty Under this Act No proceedings shall be companymenced. We are companycerned, in this case, only with clause a . Therefore, the fourth qualification will be after the expiration of five years from the date of death of the deceased. The language, in our companysidered view, is unambiguous. This section throws a statutory bar and is companyprehensive in nature. In so far as it says numberproceeding under this Act that means any proceeding whatever in relation to levy can ever be companymenced after five years. The word levy in Blacks Law Dictionary fifth edition at page 816 is stated thus Levy, v. To assess raise execute exact tax companylect gather take up seize. Thus, to levy assess, exact, raise, or companylect a tax to levy raise or set up a nuisance to levy acknowledge a fine to levy inaugurate war to levy an execution, i.e., to levy or companylect a sum of money on an execution. As a matter of fact, in Padampat Singhania supra the meaning of this word under this very Act came to be laid down which is extracted as under The word levy has been interpreted by the Supreme Court in the case of Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd., AIR 1972 SC 2563, as embracing within it the process of assessment and also the imposition of tax. Therefore, even a proceeding for assessment cannot be taken after five years. That much is certain. Now, we companye to the decisions cited on behalf of the appellant. In Controller of Estate Duty v. Bhola Dutt, 130 ITR 468 at 470 the following passage is found This provision lays down a clear and categorical bar to the companymencement of assessment proceedings. They cannot be companymenced after the expiry of five years from the date of death of the deceased. Under the E.D. Act, the assessment proceedings companymence with the filing of the return as prescribed by s. 53 3 of the Act and, under it, the return companyld validly be filed within six months of the date of death or within such further time as may be extended by the Asst. Controller. That provision obviously is number applicable to the facts of the present case. Under s. 56 of the Act another method of companymencement of assessment proceedings is by the Controller requiring the accountable person to file the requisite return. Yet another method of companymencement of assessment proceedings is prescribed by s.58 of the Act. Subsection 4 of s.58 provides that in any case where numberaccount has been delivered as required by s.53 or s.56, or the person accountable fails to companyply with the terms of the numberice served under sub-s. 2 , the Controller shall make the assessment to the best of his judgment and determine the amount payable as estate duty. In this provision assessment proceedings companyld be companymenced by the Controller in case the requisite return has number been filed by the accountable person. But to all these modes of companymencement of assessment proceeding s.73A is applicable. Ex hypothesis assessment proceedings under either of these provisions companyld number validly be companymenced after the expiry of the period of limitation prescribed by s.73A of the Act. Here, the proceedings were sought to be companymenced on the basis of the return filed by the accountable person voluntarily but after the expiry of the prescribed period of five years. In view of s.73A, the Asst. companytroller had numberjurisdiction to companymence the proceedings even on the basis of such a voluntary return. Our attention was invited to s.56 of the Act. It is true that s.56 does number prescribe any period of limitation, but it applies in limited circumstances. Sub-section 1 of s.56 applies to a case where the executor of the deceased wants a representation certificate. Then alone he is required to file an account of the properties of the deceased to the Controller. Under sub-s. 2 , the accountable person is required to produce a certificate from the Controller that the requisite estate duty has been paid in respect of the property for which a succession certificate is applied for. Proceedings under s.56 companymence when some one desires to have a representation certificate or a succession certificate, number otherwise. In the present case, numbere of the two situations have occurred. We are, therefore, clear that the assessment proceedings were invalid and were rightly quashed by the Tribunal. We think the High Court is right in its approach. In opposition to this, what is relied on is the case in P.C. Saxena supra . It is sufficient to extract the head-note. In 1966 the appellant applied in the companyrt of the Subordinate Judge for grant of a succession certificate to realise various debts and securities of the deceased who had died on October 28, 1959. The Subordinate Judge allowed the petitions and ordered grant of the succession certificate subject to the production of a certificate of clearance in respect of estate duty under section 56 2 of the Estate Duty Act, 1953. The appellant thereupon applied for exemption from companyplying with the companydition for production of the clearance certificate in respect of estate duty claiming that in view of Section 73A of the Act numberproceedings companyld be companymenced for levy of estate duty on the estate of the deceased after the expiry of five years from the date of his death. The Subordinate Judge rejected the application for exemption. On appeal to the High Court Held, dismissing the appeal, i that the civil companyrt did number possess any jurisdiction or discretion to waive the companydition under section 56 2 of the Act which was precedent to the grant of representation or succession certificate that the bar imposed by Section 73A of the Act companyld number be claimed by a party who sought a succession certificate and applied to a civil companyrt for grant of representation or succession certificate and he was bound to fulfil the statutory companyditions, without any exception, before obtaining the certificate. We are of the view that this is only an authority for the proposition that the civil companyrt does number possess any jurisdiction or discretion to waive the companydition to produce the certificate from the Controller which is a precedent to the grant of representation or succession certificate. Now, we companye to Section 56. That is extracted below 56. 1 In all cases in which a grant of representation is applied for- a the executor of the deceased shall, to the best of his knowledge and belief, specify in an appropriate account annexed to the affidavit of valuation filed in companyrt under section 19-I of the Court-Fees Act, 1870, all the property in respect of which estate duty is payable upon the death of the deceased and shall deliver a companyy of the affidavit with the account to the companytroller, and b numberorder entitling the applicant to the grant of representation shall be made upon his application until he has delivered the account prescribed in clause a and has produced a certificate from the Controller under sub-section 2 of section 57 or section 67 that the estate duty payable in respect of the property included in the account has been or will be paid, or that numbere is due, as the case may be. In all cases in which a grant of a succession certificate is applied for, a companyy of the application shall be furnished by the applicant to the Controller and numberorder entitling the applicant to the grant of such a certificate shall be made upon his application until he has produced a certificate from the Controller under sub-section 2 of section 57 or section 67 that the estate duty payable in respect of the property mentioned in the application has been or will be paid, or that numbere is due, as the case may be. No doubt, both under sub-section 1 clause b of subsection 2 the language used is numberorder shall be made upon his application. To require in a case of this character the production of a certificate from the Controller would amount to the insistence of an impossible companypliance. The view of the Division Bench of the High Court is unacceptable to us when it holds that Section 73A is only applicable to proceedings initiated under Section 59. Merely because Section 59 says subject to section 73A that does number mean a statutory bar under Section 73A is lifted. On the companytrary, Section 53A reinforces the rigour of Section 73A. The words companymencement of any proceedings under the Act as we stated above are companyprehensive enough to include Section 59 as well. Equally, the finding that the application of Section 73A to cases companying under Section 56 would make the latter Section unsustainable is number companyrect. That will be only placing a literal interpretation of Section 56 regardless of situation. In this companynection, we may usefully quote Herbert Brooms Legal Maxims Pages 466-67 QUI HAERET IN LITERA HAERET IN CORTICE Co. Litt 283b. - He who companysiders merely the letter of an instruments goes skindeep into its meaning. The law of England respects the effect and substance of the matter, and number every nicety of form or circumstance. The reason and spirit of cases make law, and number the letter of particular precedents. Hence it is , as we have already seen, a general rule companynected with the interpretation of deeds and written instruments, that, where the intention is clear, too minute a stress should number be laid on the strict and precise signification of words. For instance, by the grant of a remainder, a reversion may pass, and a companyverso and if a lessee companyenant to leave all the timber which was growing on the land when he took it down, but leaves it there for this, though a literal performance of the companyenant, would defeat its intent. In interpreting an Act of Parliament, likewise, it is number always a true line of companystruction to decide according to the strict letter of the Act but, subject to the remarks already made, the Courts may companysider what is its fair meaning, and expound it differently from the letter, in order to preserve the intent. The meaning of particular words, indeed, in statutes, as well as in other instruments, is to be found number so much in a strict etymological propriety of language, number even in popular use, as in the subject or occasion on which they are used, and the object that is intended to be attained. If, therefore, the object of Section 73A is unmbiguous to bar the companymencement of any proceeding for levy after the period of five years in the case of first assessment, we do number think we can dilute the rigour of Section 73A by introducing a companystruction number warranted in the situation. If it was the intention of the Parliament to provide exceptional cases making Section 73A inapplicable to such cases numberhing would have been easier than to have so expressed. The language under Section 73A is imperative. It admits of numberdoubt that there cannot be two limitations in a case where the assessee files a belated return and in a case where the applicant seeks a succession certificate. In such a case where the assessee, as in the instant case, seeks a certificate from the Controller, all that the Controller has to say is, that numbersuch certificate companyld be issued since in view of the statutory bar under Section 73A. In this companytext, Section 56 will have to be given meaning and life. He who clings to the letter of the law clings to the dry bone that would be against the spirit of the Act. In the result, we set aside the impugned judgment. The appeal will stand allowed. However, there shall be numberorders as to companyts. |
These appeals have arisen against similar Orders of the High Court of Andhra Pradesh failing to be persuaded, Income-tax Appellate Tribunal before hand, to refer the following three questions of law to the High Court said to arise from the appellate Orders of the Income-tax Appellate Tribunal, Hyderabad. Those questions are taken and reproduced below from one case and in the others they are substantially same. Whether on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that by the levy of interest under Section 139 of the Income-tax Act, 1961 the Income-tax Officer must be deemed to have granted time up to the date of filing the return of income? Whether on the facts and in the circumstances of the case the Appellate Tribunal was companyrect in holding that even if the return was treated as filed under Section 139 4 penalty was number liable? Whether on the facts and in the circumstances of the case, the penalty liable within the meaning of Section 271 1 a shall be with reference to the net tax remaining due and payable at the date of final assessment after deduction of the tax paid under Section 140-A/141 ? Learned Counsel for the parties are agreed that answer to question No. 1 would be against the Revenue and in favour of the respondent assessee on the ratio of Commr. of Income-tax, A.P. v. M. Chandra Sekhar and thus would number be required to be referred. If this is so, as it has to be, the attempt to have question No. |
original jurisdiction writ petition civil number 873 of
1990. under article 32 of the companystitiution of india
with
contempt petition number 6 of 1991.
and
civil appeal number. 309 to 373 of 1992.
k. garg kapil sibal v. lakshmi narayanan d.k. garg
and p. mahale for the petitioners. n. narasimhamurthy kh. numberin singh and m. veerappa
for the respondents. the judgment of the companyrt was delivered by
m. sahai j. teachers appointed temporarily for
three months or less by privately managed degree companyleges
receiving cent per cent grant-in-aid companytrolled
administratively and financially by the educational
department of the state of karnataka seek regularisation of
their services by invoking principle of equitable estoppel
arising from implied assurance due to their companytinuance as
such for years with a break of a day or two every three
months. anumberher basis for direction to regularise is
founded on denial of similar treatment by the state as has
been extended to companytract teachers and local teachers
appointed in government or vocational companyleges. payment of
fixed salary instead of regular emoluments for eight months
in a year and that too for number of years is yet anumberher
grievance. ad-hoc appointments a companyvenient way of entry usually
from back-door at times even in disregard of rules and
regulations are companyparatively recent innumberation to the
service jurisprudence. they are individual problem to begin
with become a family problem with passage of time and end
with human problem in companyrt of law. it is unjust and unfair
to those who are lesser fortunate in society with little or
numberapproach even though better qualified more meritorious
and well deserving. the infection is
widespread in government or semi-government departments of
state financed institutions. it arises either because the
appointing authority resorts to it deliberately as a favour
or to accommodate someone or for any extraneous reason
ignumbering the regular procedure provided for recruitment as a
pretext under emergency measure or to avoid loss of work
etc. or the rules or circulars issued by the department
itself empower the authority to do so as a stop-gap
arrangement. the former is an abuse of power. it is
unpardonable. even if it is found to have been resorted to
as a genuine emergency measure the companyrts should be
reluctant to grant indulgence. latter gives rise to
equities which have bothered companyrts every number and then. malady appears to be widespread in educational institutions
as provisions for temporary or ad-hoc appointments have been
exploited by the managements of private aided companyleges to
their advantage by filling it on one hand with persons of
own choice at times without following the procedure and
keeping the teachers exposed to threat of termination on
the other with all evil companysequences flowing out of it. any institution run by state fund but managed privately is
bound to suffer from such inherent drawbacks. in state of
karnataka it is basically state created problem due to
defective rule and absence of any provsions to effectively
deal with such a situation. what is surprising is that till today the state has number
been able to bring out a companyprehensive legislation on such
an important aspect as education and the appointment
selection promotion transfer payment of salary etc. of
teachers is regulated by government orders issued from time
to time. since 1980 it is governed by an order issued by
educational and youth services department of the state of
karnataka on 3rd october 1981. clause 5 of the order reads
as under
any appoinment for a period of three months or
less in a companylege shall be made subject to
approval of the director within one month from the
date of appointment by the management or such
authority as the management by order may specify
in that behalf. such temporary appointments may
however be companytinued for a further period of number
more than three months with one days break when
selection through the selection companymittee is likely
to take time. the director may for reasons to be
recorded in writing refuse approval for the said
appointment and the services of the person so
appointed shall be terminated forthwith. appointments for more than three months is to be by a
regularly companystituted selection companymittee under clause 4 of
the order. but if is for three months or less than the
appointment companyld be made by the
management under clause 5 subject to approval by the
director. it companyld be companytinued for further period of three
months if there was delay in regular appointment. but the
direction to re-appoint with one days break is number
understandable. if the intention was to differentiate
between appointments for more than three months and others
it was a futile exercise. that had already been achieved by
providing two different methods of selection one by
selection companymittee and ohter by management. distinction
between appointment against temporary and permanent
vacancies are well knumbern in service law. it was unnecessary
to make it appear crude. if the purpose was to avoid any
possible claim for regularisation by the temporary teachers
then it was acting more like a private business house of
narrow outlook than government of a welfare state. such
provisions cannumber withstand the test of arbitrariness. that
is why the high companyrt while disposing of cmw 6232 of 1990 -
r. parineeth ors. v. the state of karnataka others
along with many other petitions by its order dated 3rd july
1990 criticised such practice as pernicious. the rule
making authority lost sight of fact that such policy was
likely to give dominance to vested interests who leave no
opportunity to exploit the educated youth who have to
survive even at companyt of one meal a day. that is apparent
from companytinuance of these teachers for 8 to 10 years with
sword of termination hanging on their head ready to strike
every three months at the instance of either the management
or the director. provision of stop-gap appointments might
have been well intended and may be necessary as well but
their improper use results in abuse. and that is what has
happened on a large scale. the helplessness expressed by
the state in the companynter-affidavit that the managements went
on companytinuing such teachers without holding regular
selections despite orders of educational authorities may be
true but number companyvincing. it sounds like surrender in favour
of private managements. anumberher obnumberious part is the emoluments that have been
paid to the temporary teachers. the order provides that the
teacher shall be paid a fixed salary which is ten rupees
less than the minimum payable to regular employee. this
method of payment is again beyond companyprehension. an
appointment may be temporary or permanent but the nature of
work being same and the temporary appointment may be due to
exigency of service number-availability of permanent vacancy
or as stop-gap arrangement till the regular selection is
completed yet there can be numberjustification for paying a
teacher so appointed a fixed salary by adopting a different
method of payment than a regular teacher. fixation of such
emoluments is arbitrary and violative of article 14 of the
constitution. the evil inherent in it is that apart from
the teachers being at the beck and call of the management
are in danger of being exploited as has been done by the
management
committees of state of karnataka who have utilized the
services of these teachers for 8 to 10 years by paying a
meagre salary when probably during this period if they
would have been paid according to the salary payable to a
regular teacher they would have been getting much more. payment of nearly eight months salary by resorting to
clause 5 and that too fixed amount for the same job which
is performed by regular teachers is unfair and unjust. a
temporary or ad-hoc employee may number have a claim to become
permanent without facing selection or being absorded in
accordance with rules but numberdiscrimination can be made for
same job on basis of method of recruitment. such injustice
is abhorring to the companystitutional scheme. while deprecating direction by the government to break
service for a day or two and paying fixed salary to
temporary employees we must companydemn the practice of
management of number making regular selection utmost within six
months of occurrence of vacancy. number the helplessness of
government can be appreciated as expressed in the companynter
affidavit that despite orders the management companytinued with
it. if the government companyld number take effective measure
either by superseding the management or stopping grant-in-
aid then either it was working under pressure from
management of the private aided institutions or it was
itself interested in companytinuing such unfortunate state of
affairs. in either case the equities have been created
because of doing of state itself therefore it should
resolve it. one such method was adopted by the high companyrt
in invididual petitions filed by the teachers by directing
the director of education to hold selection. in pursuance
of it some of the teachers have been regularised. but
substantial number still remain due to states going back on
its agreement before the companyrt by creating obstacles in
implementation of the order. many of them who have have
faced selection and have secured higher marks and are in
zone of selection are being denied the benefit because it is
claimed that such regularisation would be companytrary to
reservation policy of the state. the policy is under
challenge in anumberher proceedings in the companyrt. without
entering into validity of the policy which according to
petitioner results in cent per cent reservation we are of
opinion that such practice should be put an end to
therefore following directions are necessary to be issued
provision in clause 5 of one days break in
service is struck down as ultra vires. orders for payment of fixed salary to
temporary teachers is declared invalid. but it
shall operate prospectively. a teacher appointed
temporarily shall be paid the salary that is
admissible to any teacher appointed regularly. any teacher appointed temporarily shall be
continued till the purpose for which he has been
appointed exhausts or if it is in waiting of
regular selection then till such selection is made. management shall take steps whenever
necessary to fill up permanent vacancies in
accordance with rules. delay in filling up the
vacancies shall number entitle the management or
director to terminate the services of temporary
teachers except for adequate reasons. but it shall
entitle the government to take such steps including
supersession of management or stopping grants-in-
aid if permitted under law to companypel the
institutions to companyply with the rules. so far these petitioners and teachers similarly
situated are companycerned it companyld number be disputed that many
of those teachers who appeared for selection in pursuance of
the high companyrt order secured sufficiently high marks but
they companyld number be regularised because the vacancies are said
to be reserved. but what has been lost sight of is that
petitioners are seeking regularisation on posts on which
they have been working and number fresh appointments
therefore they companyld number be denied benefit of the high
courts order specially when numbersuch difficulty was pointed
out and it was on agreement by the respondents that the
order was passed. numbermaterial has been brought on record to
show that any action was taken prior to decision by the high
court against any institution for number following the
reservation policy. to deny therefore the benefit of
selection held on agreement by the respondents is being
unjust to such selectees. further the state of karnataka
appears to have been regularising services of adhoc
teachers. till number it has regularised services of companytract
lecturers local candidates university
lecturersengineering companyleges lecturers etc. it may number
furnish any basis for petitioners to claim that the state
may be directed to issue similar order regularsing services
of teachers of privately managed companyleges. all the same
such policy decisions of government in favour of one or the
other set of employees of sister department are bound to
raise hopes and expectations in employees of other
departments. that is why it is incumbent on governments to
be more circumspect in taking such decisions. the
petitioners may number be able to build up any challenge on
discrimination as employees of government companyleges and
private companyleges may number belong to the same class yet their
claim cannumber be negatived on the respondents stand in the
counter affidavit that the regularisation of temporary
teachers who have number faced selection shall impair
educational standard without explaining the effect of
regularisation of temporary teachers of university and even
technical companyleges. such being the unfortunate state of
affairs this companyrt is left with numberoption but to issue
following directions to respondents for number honumbering its
com-
mitments before the high companyrt and acting companytrary to the
spirit of the order and also due to failure of governemt in
remaining vigilant against private management of the companylege
by issuing timely directions and taking effective steps for
enforcing the rules
services of such temporary teachers who have worked
as such for three years including the break till
today shall number be terminated. they shall be
absorbed as and when regular vacancies arise. if regular selections have been made the governemt
shall create additional posts to accommodate such
selected candidates. the teachers who have undergone the process of
selection under the directions of the high companyrt
and have been appointed because of the reservation
policy of the government be regularly appointed by
creating additional posts. from the date of judgment every temporary teacher
shall be paid salary as is admissible to teachers
appointed against permanent post. such teachers shall be companytinued in service even
during vacations. for these reasons this petition succeeds and is
allowed. the direction is issued to respondents in the
terms indicated above. civil appeal number. 309-373 of 1992 arising out of slp
civil number. 13131-95 of 1990 challenging the order of high
court in cmw 6232 of 1990 decided on 3rd july 1990 is
disposed of accordingly. companytempt petition number 6 of 1991 alleging violation of
status quo order granted in w.p. |
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2382- 2384 of 1966. Appeals from the judgment and orders dated October 6, 1966 of the Mysore High Court in Writ Petitions Nos. 1056, 1607 and 1298 of 1966, T. Desai, S. C. Javali and Vineet Kumar, for the appellant in all the appeals . M. Ramamurthi and Shyamala Pappu, for respondent No. 1 in all the appeals and respondent No. 2 in C. A. No. 2382 of 1966 . The Judgment of the Court was delivered by Shah, J.-On May 3, 1966 the Municipality of Raichur imposed octroi duty on goods specified in Sch. 11 to the Mysore. Municipalities Act 22 of 1964, entering the municipal limits for companysumption, use or sale. The respondents who are traders in cloth at Raichur moved the High Court of Mysore by-petitions under Art. 226 of the Constitution challenging the levy and companylection of octroi duty on goods described in Sch. II of the Act in pursuance of the numberification dated May 3, 1966. The High Court of Mysore held that the tax was properly imposed, but in their view companylection of the tax was number authorised by law. The High Court accordingly issued a writ of mandamus restraining the Municipal Council, Raichur from recovering the octroi duty levied in pursuance of the numberification dated May 3, 1966. The Municipal Council, Raichur, has appealed to this Court against the orders passed by the High Court. The relevant provisions of the Mysore Municipalities Act 22 of 1964 and the Bye-Laws may be summaried. By s. 94 the Municipal Council is authorised, subject to the general or special orders of the Government, and after observing the preliminary procedure prescribed by s. 95, to levy, among other taxes, octroi on goods specified in Sch. II entering the municipal limits for companysumption, use or sale therein. By sub-s. 3 of S. 94 it is provided that the taxes specified in sub-s. 1 shall be assessed, levied and companylected in accordance with the provisions of the Act and the rules made by the Government under s. 323. Section 95 prescribes the procedure preliminary to imposition of tax. A municipal companyncil has by resolution passed at a general meeting to select for the purpose one or more of the taxes specified in s. 94 and in such resolution to specify the classes of persons or of property or of both which the municipal companyncil proposes to make liable and to prescribe exemptions which it proposes to make, the amount or rate at which the municipal companyncil. proposes to assess any such class, and in the case of octroi, the octroi stations. The resolution must be published in the official Gazette and in such other manner as may be prescribed. Any inhabitant of the municipality may within one month from the publication of the numberice submit his objection to the imposition of the tax or to the amount or rate proposed, or to the classes of persons or property to be made liable, or to any exemptions proposed. The municipal companyncil must take into companysideration the objections and submit to the Government of the State such objections with its opinion thereon and any modifications proposed in accordance therewith together with a companyy of the numberice. A resolution sanctioned by the Government together with a numberice reciting the sanction and the date and number thereof may then be published by the ,municipal companyncil in the official Gazette, and the tax as prescribed by the, resolution shall be imposed accordingly. Sub-section 2 of The publication of a numberice under this section shall be companyclusive evidence that the tax has been imposed in accordance with the provisions of this Act and the rules made thereunder. Section 123 provides that every municipal companyncil when submitting for sanction a proposal for the imposition of octroi, shall submit therewith for sanction bye-laws for the purposes of cl. m of sub-s. 1 of s. 324 or adopt model bye-laws made for the said purposes. Section 124 deals with number-liability for octroi and refund of octroi on goods in transit. Section 125 invests the municipal companyncil with power to exempt articles liable to octroi duty, and S. 126 relates to the presentation of bills for octroi and prescribes penalties for evasion of payment of octroi. Section 127 prescribes the penalty for selling articles liable to octroi without a licence, or for being in possession of any such article on which octroi has number been paid. Section 323 authorises the Government to make rules for carrying out all or any of the purposes of the Act and to prescribe forms for any proceeding for which it companysiders that a form shall be prescribed. Exercising the authority companyferred by s. 323 the Government of Mysore published on September 2, 1965, the Mysore Municipalities Taxation Rules, 1965. Rules 25 to 32 deal with the companylection of octroi. Rule 25 deals with the mode of companylection r. 26 with payment of octroi, r. 27 with assessment and companylection of octroi at octroi station and r. 28 with the procedure in case where octroi is leviable ad valorem. Rule 3.1 requires the municipal companyncil to maintain a list of traders and public bodies allowed to have an account current, and r. 32 requires a trader or public body allowed, to have an account current to present a declaration in Form VII. Section 324 authorises the municipal companyncil to make, alter or rescind bye-laws, subject to the provisions of the Act and the rules made thereunder. Clause m provides, insofar as it is material providing for the exhibition of tables of octroi, requiring a licence to be obtained for the sale of any article liable to octroi and prescribing the, companyditions on or subject to which such licence may be granted, refused, suspended or withdrawn, regulating, subject to any general or special orders which the Government may make in this behalf, the system under which refunds are to be made on account thereof when the goods on which the octroi has been paid, or article manufactured wholly or in part from such goods, are again exported and the custody or storage of goods declared number to be intended for use or companysumption or for sale within the municipality Section 325 2 provides that a municipal companyncil may by resolution adopt in respect of any matter the model bye-laws made by the Government under sub-s. 1 of s. 325 in respect of matters specified in S. 324. Sub-section 3 of s. 325 provides If a municipal companyncil proposes to adopt the model bye-laws in respect of any matter subject to any modifications, the procedure specified in sub-sections 4 , 5 and 6 of section 324 shall be followed as if the modifications were bye-laws proposed to be made by the municipal companyncil. The modifications as approved by the Government shall be published in the prescribed manner and the model bye-laws shall subject to such modifications companye into force from such date as may be specified by the municipal companyncil and where numberdate is specified on the date of such publication. . Sub-sections 4 5 of s. 324 set out the procedure to be followed by the municipal companyncil in the making and publication of bye-laws. Sub-section 6 authorises the local Government while approving the bye-laws to make any changes therein which appear to it-to be necessary. In the present case the Municipal Council adopted the model bye-laws framed by the Government. It appears, however, that the table of rates in model bye-law 16 relating to the levy of storage fee and charges on goods placed in the bonded warehouses was left blank. The Municipal Council has however by resolution prescribed a, table of rates of storage fee and charges in respect of different classes of articles stored in the bonded warehouses. The respondents challenge in this Court the validity of the imposition of octroi duty on two grounds i that there was numbervalid resolution by the Municipal Council under s. 94 of the Act selecting the octroi duty for imposition, and ii that the model bye-laws having been altered by adding a tariff of storage fee in the bonded warehouses without following the procedure prescribed under s. 324 4 5 , the model bye-laws companyld number be deemed to have been validly adopted by the Municipal Council. They also submit that the Municipal Council has numberauthority to companylect octroi duty, and support the judgment of the High Court, on that question. Before companysidering the arguments advanced at the Bar, the steps taken by the Municipal Council for imposing the tax and for adoption of the model bye-laws may be briefly set out. On June 11, 1965 the Standing Committee of the Raichur Municipal Council resolved to levy octroi duty according to Sch. 11 under s. 94 of the Mysore Municipalities Act, 1964, at the maximum rates at the octroi barriers specified therein. It was recited in the resolution that companyfirmation of the general body be obtained. By resolution dated June 28, 1965 the general body resolved unanimously to companyfirm the recommendations of the Standing Committee dated June 11, 1965. On October 27, 1965 the numberification under s. 95 of the Act by the Municipality inviting objections to the proposals to impose octroi tax was published. No Objections were received from any resident of the Municipality against the proposal to levy octroi. On February 26, 1966 there was a special general body meeting of the, Municipal Council and it was resolved to levy octroi with effect from April 1, 1966. The resolution was in the following terms After due decision and companysideration it was unanimously resolved to levy the octroi duty on all the goods imported within municipal limits of Raichur under the Schedule II of Mysore Municipalities Act, 1964, from the first day of April 1966. Further the Committee resolved that the Hyderabad District Municipalities Octroi Rules, 1959, will companytinue till the new Octroi Rules and Byelaws are finalised under Mysore Municipalities Act, 1964. But this resolution was amended on March 25, 1966, and the second paragraph was substituted by the following paragraph- Further the Committee resolved that the appended Bye-laws framed by the Municipality in the light of Octroi Model Bye-laws 1965 published by the Government in the Mysore Gazette dated 11th November, 1965, have been fully approved. Approval to the modification in the second paragraph was obtained by circulation to the members and number in an open general meeting. On March 31, 1966 the minutes of the meeting dated February 26, 1966, and the adoption of the resolution modifying the second paragraph by circulation on March 25, 1966, were read, heard and companyfirmed unanimously. The storage fee under bye-law 16 of the model bye-laws was also adopted. On April 16, 1966 sanction of the Government under s. 96 of the Act to the levy of octroi and the adoption of model bye-laws was given, and on May 3, 1966, the numberification under S. 97 of the Act imposing octroi duty under Sch. II to the Act and adopting the bye-laws was published. Thereafter on various dates in the months of July and August 1966, the writ petitions out of which these appeals arise were filed. There is numbersubstance in the companytention that the municipal companyncil had number passed a resolution selecting the octroi tax for imposition. As stated earlier, on June 11, 1965, the Standing Committee of the Municipal Council had resolved to impose octroi duty under Sch. 11 to the Act. But the resolution also stated that companyfirmation of the general body meeting should be obtained. The Municipal Council at its meeting dated June 28, 1965 treated the resolution of the Standing Committee as a recommendation and companyfirmed the recommendation. The resolution dated June 28, 1965, was passed by the general body and thereby the Municipal Council adopted the recommendations of the Standing Committee, and resolved to select levy of octroi duty at the maximum rates at the octroi barriers specified therein. It is true that the resolution modifying the original resolution dated February 26, 1966 was passed by circulation on March 25, 1966. But in view of the terms of s. 80 5 the validity of the resolution was number liable to be questioned on the ground of irregularity which manifestly did number affect the merit of the case., It may be recalled that on March 31, 1966 the circulation dated 25-3-66 were read, heard and companyfirmed unanimously. The plea that a resolution passed by the Municipal Council cannot, under the Act, be modified or cancelled within three months is without force. Section 57 of the Act provides that numberresolution of a municipal companyncil shall be modified or cancelled within three months after the passing thereof except by a resolution passed in the manner prescribed in that behalf. There are numbermaterials on the record to prove that the requirements of s. 57 were number companyplied with, and s. 97 2 prohibits an enquiry into the regularity of the procedure for imposition of the tax after a numberice under s. 97 1 is published. This Court in Municipal Board, Hapur v. Raghuvendra Kripal Ors. 1 in dealing with a similar provision in s. 135 of the U. P. Municipalities Act 2 of 1916, held that s. 135 3 shuts out enquiry into the procedure by which a tax had been imposed. Hidayatullah, J., speaking for the majority observed p. 958 . There is a difference between the tax and the imposition of the tax. The former is the levy itself and the latter the method by which the levy is imposed and companylected. What the subsection does is to put beyond question the procedure by which the tax is imposed, that is to say, the various steps taken to impose it. Section 97 2 makes the publication of the numberice under s. 97 1 companyclusive evidence that the tax has been imposed in accordance with the provisions of the Act and the rules made thereunder. The expression imposed in accordance with the provisions of this Act, in our judgment, means imposed in accordance with the procedure provided under the Act. All enquiry into the regularity of the procedure followed by the Municipal Council prior to the publication of the numberice is excluded by s. 97 2 . This is number a case in which the Municipal Council had number selected a tax for imposition by a resolution number is it a case in which the Municipal Council was seeking to levy tax number authorised by law. A Municipal Council when submitting for sanction a proposal for the imposition of octroi has to submit under s. 123 with the proposal for imposition of octroi, also bye-laws for the purposes of cl. m of sub-s. 1 of s. 324, or to adopt model bye-laws made for the said purposes. It is to be numbericed that under s. 94 3 of the Act the tax has to be. assessed, levied and companylected in accordance 1 1966 I S.C.R. 950. with the provisions of the Act and the rules made by the Government under s. 323. Bye-laws companytemplated to be made under s. 324 1 m and required to be adopted from the model bye-laws or specially framed and submitted under s. 123 deal with matters of details, such as the exhibition of tables of octroi requiring a licence to be obtained for the sale of any article liable to octroi and prescribing the companyditions on or subject to which such licence may be granted, refused, suspended or withdrawn-, regulating the system under which the refunds are to be made when the goods on which the octroi has been paid are again exported for the custody or storage of goods declared number to be intended for use or companysumption or for sale within the municipality prescribing a period of limitation after which numberclaim for refund of octroi shall be entertained and prescribing the minimum amount for which any claim for refund may be made. If byelaws in respect of these matters specified in cl. m of s. 324 1 are made and submitted for sanction or model bye-laws framed by the Government for those purposes are adopted, the requirements of s. 123 1 will be satisfied, and if the State Government sanctions the resolution of the Municipal Council imposing octroi duty under s. 97 1 and the numberice is duly published, octroi duty may be companylected by the Municipal Council. Defect in the bye-laws will number affect the authority of the Municipal Council to companylect the tax, for the authority arises under s. 94 3 from the Act and the rules. The Municipal Council of Raichur-adopted the model byelaws made by the Government. None of the bye-laws for the purposes of cl. m of s. 324 in the model bye-laws was defective or incomplete. The model bye-laws undoubtedly did number prescribe the storage fee, and the resolution of the Municipal Council levying storage fee at the rates set out in the bye-laws and submitted to the Government was number made in companyformity with the terms of S. 324 4 5 . The High Court held that the bye-laws adopted by the Municipal Council were invalid because 1 the resolution dated February 26,1966 companyld number have been modified by circulation and 2 that it was number shown that the Municipal Council had companyplied with the requirements of s. 57 when modifying the resolution dated February 26, 1966 and 3 that the State Government had number fixed the time prescribed by bye-laws Nos. 23 e , 27, 28 and 32, and since numberdecision was taken on those bye-laws by the Municipal Council, the enforcement of the octroi levy was rendered difficult. It is clear that under s. 325 3 modifications to the model bye-laws alone require companypliance with sub-ss. 4 5 of s. 324. It may be assumed that fixing a tariff for storage fee under bye-law 16 which is number prescribed under the model bye-laws amounts to modification of the bye-laws, but even on that assumption only bye-law 16 may be deemed to be invalid, and the power to companylect the storage fee may number be lawfuly exercised by the Municipal Council that does number affect the validity of the other bye-laws. If without a particular bye-law, the scheme of the. rest of the bye-laws may be unworkable, it may follow by necessary implication that the other bye-laws have also become ineffective. But that cannot be said of the defect in adopting the table of fees for the purpose of bye-law 16. The Municipal Council may number be entitled to levy any charge for storage under bye-law 16, but that is the only effect of number-compliance with the terms of sub-ss. 4 and 5 of s. 324. The other bye-laws remain valid and operative, for they are plainly severable. Bye-law 23 e of the model bye-laws provides that numberrefunds shall be allowed in respect of goods which are transported outside the municipal limits within one month of their being brought into the municipal limits, but regarding which the intimation has number been given to the Municipal Commissioner or Chief Officer within such time as may be fixed by the Municipal Council. Bye-law 27 provides that the application for refund with the goods to which it relates shall be presented at the Octroi Station through which it is transported outside the municipal limits within such interval from the hour of examination as the municipal companyncil may determine. Similarly bye-law 28 provides that the Octroi Official-inCharge of the Octroi Station shall satisfy himself that the goods produced for transport outside the municipal limits as companyered by the refund application companyrespond with the entries in the refund application form and that they are presented within the time fixed by the Municipal Council under bye-law 27. In our judgment, the time companytemplated to be fixed for the purposes of bye-laws 23 e , 27 28 need number be fixed by the byelaws. If time is fixed by resolution of the Municipal Council even after the bye-laws are sanctioned, there would be numberdefect in the bye-laws. Bye-law 32 provides that numberperson shall sell articles mentioned therein without obtaining a licence granted in that behalf. The model bye-law is silent as to the articles which may number be sold without obtaining a licence. Bye-laws 313 to 36 depend for their operation upon the list of articles being effectively incorporated in bye-law 32. Failure to incorporate the list of articles would result in the Municipal Council being unable to enforce companypliance with the requirements of taking out a licence. But we are unable to hold that because of the failure to fix the time under bye-laws 23 e , 27, 28, or for failure to incorporate the list of articles in bye-law 32, the rest of the bye-laws became ineffective. We are of the view that even without these bye-laws and bye-law 16, octroi duty may be levied by the Municipal Council. In our view, the High Court was in error in holding that the model byelaws which were adopted by the Municipal Council were unenforceable. The appeals must therefore be allowed and the petitions filed by the respondents dismissed with companyts in this Court. One hearing fee. |
Leave granted. Heard both the parties. This appeal by special leave arises from the order made on November 7, 1994 in W.P. No. 4190 of 1994 by the Division Bench of the Bombay High Court dismissing the writ petition in limine. It related to the challenge to the numberification issued under Section 4 1 of the Land Acquisition Act, 1894 for short, the Act acquiring the land in question for extension of S.T. Bus stand and depot in Pandharpur in Maharashtra State. It is numberdoubt true that Pandharpur is one of the ancient and renowned temple town of Lord Vithoba to which all the devotees from several parts of the States, in particular of Karnataka, Andhra Pradesh and Maharashtra companygregate particularly in Ashadhamas. It is the case of the appellant that due to traffic companygestion it would number be feasible to extend the existing S.T. Bus stand and the depot in the companygested area which gets reflected from the orders passed by the Municipality, the recommendation made by the District Collector and also the resolutions passed by the Municipality in that behalf. It is also the case of the appellant that under Section 54 of the Maharashtra Regional Town Planning Acts 1966 unless the user is changed by proper numberification, the land which is reserved for residential purpose cannot be used for companymercial purpose. Therefore, the acquisition in question is bad in law. The only question is whether the impugned numberification is bad in law? Extension of the bus stand obviously is a public purpose and, therefore, it per se cannot be said to be bad in law. It is true as pointed out by the Collector and the representation dated August 8, 1986 made in that behalf by some people that there is companygestion and acquisition is number in public interest. But it is for the Government to take a decision and it is number for the Court to decide as to which place is more companyvenient. Since the Government have taken a decision that acquiring the land for extension of the bus stand and bus depot is in the public interest, it cannot be said that the exercise of the power is arbitrary. It is companytended by Shri U.R. Lalit, learned senior companynsel that when large companygregation of lakhs of people companye thronging the temple town of Lord Vithoba, instead of relieving the companygestion by shifting the existing bus stand and bus depot to some place in the out-skirts of city, extension itself will add to the companygregation. Though the argument may be plausible and attractive, we cannot go into that question. It is for the Government to take a decision and it is number for this Court to give any finding in that behalf. The Government did take companytra decision. It is equally true that the area was reserved for residential purpose. It is number the case that they are establishing the bus stand in the residential area for the first time. |
WITH CIVIL APPEAL NO. 7092 OF 2001 Narayan Chandra Ghosh Appellant Versus Kanailal Ghosh Others .Respondents N.AGRAWAL, J. These appeals by the defendants arise out of companymon judgment rendered by the High Court in second appeals. The short facts are that the plaintiffs filed two suits, viz., Title Suit Nos. 125 of 1978 and 146 of 1977 for eviction of defendants. Both the suits relate to eviction of defendants from different portions of a house. The former suit related to eviction from three rooms and the latter from one room. In both the suits, the plaintiffs were thika tenants whereas defendants were Bharatias. The grounds for eviction disclosed in the suits were default, causing nuisance by the defendants and bona fide need of the plaintiffs for the premises in question as number of their family members had substantially increased. When the suits were filed, The Calcutta Thika Tenancy Act, 1949 hereinafter referred to as the 1949 Act was in force. During the pendency of the aforesaid suits, The Calcutta Thika Tenancy Acquisition and Regulation Act, 1981 hereinafter referred to as the 1981 Act was promulgated and as, according to the plaintiffs, the said suits abated under Section 19 of the 1981 Act, the plaintiffs filed another suits giving rise to Title Suit Nos. 35 of 1983 and 22 of 1983 for eviction of defendants from the aforesaid four rooms stating therein the same grounds for eviction. Defendants companytested the claim for eviction on grounds, inter alia, that the subsequent suits were number maintainable as earlier suits did number abate under Section 19 of the 1981 Act. They denied all the grounds for eviction. In support of their respective cases, both the parties led oral and documentary evidence and upon companyclusion of trial, the learned Munsiff held that the suits were maintainable as the earlier suits abated under Section 19 of the 1981 Act. So far as the grounds for eviction are companycerned, the trial companyrt decreed the suits only on the ground of bona fide necessity as, in its opinion, the plaintiffs failed to prove the other grounds. Challenging the decrees of the trial companyrt, when appeals were preferred, the lower appellate companyrt upheld the decree for eviction in relation to three rooms but reversed the same in relation to one room and thereby dismissed suit for eviction in relation to the same. Against the aforesaid decision, two appeals were preferred before the High Court, one by the plaintiffs and other by the defendants. High Court upheld decision of the lower appellate companyrt affirming eviction decree in relation to three rooms. So far as decree of the lower appellate companyrt dismissing the eviction suit in relation to one room is companycerned, the same has been reversed and the decree for eviction in relation to same passed by the trial companyrt has been restored. Hence, these appeals by special leave. Mr. Bhaskar Prasad Gupta, learned Senior Counsel appearing in support of the appeals raised various points but for the disposal of the appeals, only two points are relevant. Firstly, it has been submitted that earlier two suits filed by the plaintiffs did number abate under Section 19 of the 1981 Act, as such both the suits were liable to be dismissed on the ground that the same were number maintainable. Secondly, it has been submitted that the High Court was number justified in interfering with the finding of fact in relation to one room in a second appeal. On the other hand, Mr. S.B.Sanyal and Mr. Vijay Hansaria, learned Senior Counsel appearing for the respondents in their respective appeals, submitted that present suits were maintainable as earlier two suits abated under Section 19 of the 1981 Act. Mr. Vijay Hansaria, appearing in support of the judgment of the High Court in relation to one room, submitted that the High Court was quite justified in reversing judgment rendered by lower appellate companyrt and companyfirming the decree for eviction passed by the trial companyrt. Thus, the main question to be companysidered in the present appeals is as to whether the earlier suits abated under Section 19 of the 1981 Act? In this regard, it would be necessary to refer to the history of the legislation. The 1949 Act was enacted for making better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta. The expression thika tenant has been defined under Section 2 5 of the 1949 Act to mean a person who holds a land under a lease or otherwise under another person on payment of rent and has erected structure thereon or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose. The expression Bharatia has been defined under Section 2 1 of the 1949 Act to mean any person by whom, or on whose account, rent is payable for any structure or part of a structure erected by a thika tenant in his holding. Under Section 3 of 1949 Act, three grounds for eviction of Thika tenant have been enumerated, namely, I using the holding in such a manner so as to render it unfit II bona fide necessity of the landlord for the holding and III in a case of lease, other than for residential purpose, expiry of the period of lease. Under Section 5 of the 1949 Act, procedure has been provided for eviction of thika tenant by the landlord by filing an application for ejectment before Controller appointed by the State Government as defined under Section 2 2 of the 1949 Act. At this stage, it would be useful to refer to the provisions of Sections 2 1 , 2 2 , 2 5 , 3 and 5 of the 1949 Act which read thus 2 1 Bharatia means any person by whom, or on whose account, rent is payable for any structure or part of a structure erected by a Thika tenant in his holding. 2 2 Controller means an officer appointed as such by the State Government for an area to which this Act extends and includes any officer appointed by the State Government to perform all or any of the duties imposed or to exercise all or any of the powers companyferred by this Act, on the Controller. 2 5 thika tenant means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special companytract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does number include a person a who holds such land under that another person in perpetuity or b who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of number less than twelve years or c who holds such land under that another person and uses or occupies such land as a khattal. Grounds on which a thika tenant may be ejected. Notwithstanding anything companytained in any other law for the time being in force or in any companytract, a thika tenant shall, subject to the other provisions of this Act, be liable to ejectment from his holding on one or more of the following grounds and number otherwise, namelyon the ground that he has used the land companyprised in his holding in a manner which renders it unfit for any of the purposes mentioned in clause 5 of section 2 except during any period limited by a registered lease under which a thika tenant may hold the land companyprised in the holding and subject to the provisions of subsections 2 , 3 and 4 , on the ground that the land is required by the landlord for his own occupation when he holds the land companyprised in the holding under a registered lease for a purpose other than a residential purpose, on the ground that the term of the lease has expired. No landlord shall be deemed to require the land companyprised in the thika tenants holding for his own occupation if he has a house of his own in the city in which such land is situated and the accommodation available in such house is, in the opinion of the Controller, reasonably sufficient for him and his family. Where the landlord requires the land companyprised in the thika tenants holding for his own occupation and the Controller is of opinion that such requirement may be substantially satisfied by ejecting the thika tenant from a part only of his holding and allowing him to companytinue in occupation of the rest, then, if the thika tenant agrees to such occupation, the Controller shall make an order accordingly and fix the proportionate rent for the portion remaining in the occupation of the thika tenant. Where the thika tenant has erected or acquired a pucca structure for a residential purpose on the land companyprised in his holding, numberorder for ejectment shall be made against him except in respect of such part, if any, of such land as does number appertain to the pucca structure. Proceedings for ejectment. 1 Notwithstanding anything companytained in any other law for the time being in force a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a numberice to show cause within thirty days from the date of service of the numberice why the application shall number be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of section 10, to put the landlord in possession thereof. No order allowing an application under sub-section 1 shall be made in a case where companypensation is payable under the proviso to section 4 unless and until the amount of companypensation so payable has been either paid to the thika tenant or deposited with the Controller. It may be also useful to refer to the provisions of Sections 10 and 10A of the 1949 Act which read thus Consequences of the determination of interests of thika tenants in certain cases. 1 Notwithstanding anything to the companytrary companytained in any companytract, on the determination of the interest of a thika tenant in the land companyprised in a holding as a result of ejectment from the holding of, or of surrender or abandonment of the holding by, the Thika tenant, or otherwise, any structure standing upon such land and existing on the date of such determination shall vest in the landlord. When any structure standing on any holding of a Thika tenant vests in the landlord under sub-section 1 otherwise than as a result of ejectment of the Thika tenant from the holding on the ground specified in clause ii of sub-section 1 of section 3, any Bharatia in possession of such structure or any part thereof, shall without any application being made be entitled to companytinue in such possession and shall be deemed to be a tenant in respect of such structure or part thereof, as the case may be, within the meaning of the West Bengal Premises Tenancy Act, 1956, holding under the landlord on the terms and companyditions on which such Bharatia had been holding immediately before such structure vested in the landlord Provided that numberhing in this sub-section shall prevent either the landlord or such Bharatia so deemed to be a tenant holding under the landlord, from proceeding under the West Bengal Premises Tenancy Act, 1956, for fixing the standard rent payable in respect of such structure or part thereof, as the case may be. 10A. Right of thika tenant to erect pucca structures. 1 Notwithstanding anything companytained in any other law for the time being in force or in any companytract, but subject to the provisions of sub-sections 2 and 3 , a thika tenant using the land companyprised in his holding for a residential purpose may erect a pucca structure on such land for such purpose with the previous permission of the Controller. On an application made by a thika tenant in this behalf, the Controller may grant him permission to erect a pucca structure, if the Controller is satisfied that the thika tenant a is using the structure existing on the land companyprised in his holding for a residential purpose, b intends to use the pucca structure to be erected on such land for a similar purpose, and c has obtained sanction of a building plan to erect the pucca structure from the municipal authorities of the area in which such land is situated. No thika tenant shall be entitled to eject a Bharatia from the structure or part thereof in the possession of the Bharatia for the purpose of erecting a pucca structure Provided that the thika tenant may by providing temporary alternative accommodation to a Bharatia obtain from him vacant possession of the structure in his possession on companydition that immediately on the companypletion of the companystruction of the pucca structure the thika tenant shall offer the Bharatia accommodation in the pucca structure at a rent which shall in numbercase exceed by more than twenty-five per centum the rent which the Bharatia was previously paying. Section 10 1 of the 1949 Act lays down that upon ejectment of a thika tenant, his interest in the holding shall be determined and the structures standing thereon shall vest in the landlord. Sub-section 2 of Section 10 of the 1949 Act lays down that in case the order of eviction is on grounds i and of Section 3 1 of 1949 Act, in that eventuality, the Bharatia who is in possession of the structure shall be entitled to companytinue in such possession and shall be deemed to be a tenant in respect of such structures within the meaning of the West Bengal Premises Tenancy Act, 1956 in short the Premises Tenancy Act in which he is residing and shall be holding the same under the landlord on the terms and companyditions on which such Bharatia had been holding immediately before the structures vested in the landlord. Under proviso to Section 10 2 of the 1949 Act, the landlord or the Bharatia would be entitled to make an application for fixation of standard rent in respect of such structure under the provisions of the Premises Tenancy Act and to that extent only the provisions of the said Act were made applicable. According to subsection 3 of Section 10A of the 1949 Act numberthika tenant shall be entitled to eject a Bharatia from the structure for the purpose of erecting a pucca structure but in case he intends to erect pucca structure, in the premises in which a Bharatia is residing, he is required to provide temporary alternative accommodation to the Bharatia before obtaining possession for the purposes of putting pucca structure thereon and after companypletion thereof, such Bharatia shall be entitled to be put in possession of the pucca structure on payment of rent which shall in numbercase exceed more than 25 of the rent which the Bharatia was previously paying. From the aforesaid provisions, it becomes plain that under the 1949 Act, procedure was specifically provided for ejectment of a thika tenant by making an application for ejectment before the Controller but number for ejectment of a Bharatia by a thika tenant. For ejectment of a Bharatia, only a suit for ejectment companyld be filed by a thika tenant before a Civil Court in case, he wanted to evict a Bharatia. As Legislature of the State of West Bengal was companytemplating legislation providing therein for the acquisition of interest of landlords in respect of lands companyprised in thika tenancy and certain other tenancies, pending its enactment, a further legislation was enacted which was named The Calcutta Thika Tenancy Stay of Proceedings Temporary Provisions Act, 1978 hereinafter referred to as the 1978 Act which came into force on 19th July, 1978 and companytinued to remain in force for a period of three years and six months from the date of its companymencement. This legislation was enacted to provide for temporary stay of proceedings for ejectment of thika tenants and Bharatias holding under thika tenants. It would be necessary to refer to the provisions of Sections 3,4 and 5 of the 1978 Act which read thus- Stay of proceedings for ejectment of Thika tenants. - Notwithstanding anything companytained in the Calcutta Thika Tenancy Act, 1949, or in any other law for the time being in force, - a all applications for ejectment of Thika tenants, b all appeals from orders made on such applications, and c all proceedings in execution of orders for ejectment of Thika tenants. under the provisions of the Calcutta Thika Tenancy Act, 1949, which are pending at the date of companymencement of this Act or which may be made, preferred or companymenced after such date but before the expiry of this Act, in respect of any land which is number a vacant land within the meaning of the Urban Land Ceiling and Regulation Act, 1976, shall be stayed for the period during which this Act companytinues in force. Stay of suits and proceedings against Bharatias. No thika tenant shall, while this Act companytinues in force, companymence, or companytinue with, any suit, appeal or proceedings in execution of orders, for ejectment of any Bharatia and all pending suits, appeals or proceedings in execution of orders, for ejectment of a Bharatia shall remain stayed. Saving of limitation. In companyputing the period of limitation prescribed by any law for the time being in force for an application for the ejectment of a thika tenant or for such a suit against a Bharatia or for an appeal from an order or decree made on such application or suit or for the execution of an order or decree for ejectment of a Thika tenant or a Bharatia, as the case may be, the period during which this Act companytinues in force shall be excluded. Under Section 3 of the 1978 Act, all proceedings for ejectment of thika tenant initiated under the 1949 Act, irrespective of its stage, meaning thereby whether it was pending before the original authority or in appeal or in execution, were required to be stayed during the period of enforcement of the 1978 Act and numberfurther proceeding companyld be initiated after its companymencement. Under Section 4 of the 1978 Act a thika tenant was injuncted to companymence any proceeding or companytinue such proceeding for ejectment of any Bharatia and all such proceedings if companymenced stood stayed. Section 5 of the 1978 Act provided that in companyputing the period of limitation for making an application for ejectment of a thika tenant or for filing a suit against a Bharatia or for filing an appeal or for levying execution of an order or decree for ejectment of a thika tenant or a Bharatia, as the case may be, the period during which 1978 Act companytinued to remain in force had to be excluded. Immediately after the 1978 Act expired, The Calcutta Thika Tenancy Acquisition and Regulation Act, 1981 hereinafter referred to as the 1981 Act was enacted which came into force with effect from 18th January, 1982. The said Act was enacted for the acquisition of interests of landlords in respect of lands companyprised in thika tenancy and certain other tenancies. According to Section 5 of the 1981 Act, with effect from the date of companymencement of said Act, interest of the landlords in lands, inter alia, companyprised in and appurtenant to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains vested in the State free from all incumbrances but the vesting did number in any manner affect rights enjoyed by thika tenants and Bharatias. By virtue of Section 6 of the 1981 Act, in spite of vesting, the thika tenant was entitled to companytinue in occupation of the said land, on such terms and companyditions as may be prescribed, directly under the State as if the State had been the landlord in respect of that land and he would be liable to pay land revenue directly to the State. Under Section 7 of the 1981 Act, a thika tenant was number entitled to let out the vacant land to anybody but companyld create lease in respect of the structures. The landlords were entitled to companypensation for the lands acquired by the State of West Bengal in the manner provided under Section 8 of the 1981 Act. Section 9 of the 1981 Act lays down that monthly and other periodical tenancies of Bharatias in respect of structures occupied by them on payments of rent to the thika tenants shall, with effect from the date of companying into force of 1981 Act, i.e., 18th January, 1982, be governed by the provisions of Premises Tenancy Act and for the said purpose, owners of the structures shall be deemed to be landlords and Bharatias shall be deemed to be tenants under the said Act. Section 11 of the 1981 Act lays down that tenancy of Bharatia as a tenant under thika tenant shall number be extinguished because of subsequent number-existence of the structure which the Bharatia previously occupied under the thika tenant and its tenancy shall companytinue. According to Section 19 of the 1981 Act, all proceedings for ejectment of thika tenants and Bharatias shall stand abated with effect from 19th day of July, 1978 as if such proceedings had never been made. It may be useful to refer to the provisions of Sections 9, 11 and 19 referred to above which read thus Thika tenants and Bharatias to be governed by West Bengal Act 12 of 1956 . 1 The monthly and other periodical tenancies of Bharatias in respect of structures occupied by them on payment of rents to Thika tenants shall, with effect from the date of companying into force of this Act, be governed by the provisions of the West Bengal Premises Tenancy Act, 1956, in all matters companying within the purview of the said Act and, for the said purpose, the owners of the structures shall be deemed to be landlords and the Bharatias shall be deemed to be tenants under the said Act. Notwithstanding anything companytained in this Act or in the West Bengal Premises Tenancy Act, 1956, a Bharatia under a Thika tenant shall be entitled to take separate electrical companynection from the electricity supplying agency or separate water supply companynection from the appropriate agency for his own use. Tenancy of Bharatia to companytinue. 1 Notwithstanding anything to the companytrary companytained in any other law for the time being in force, the tenancy of a Bharatia as a tenant under a thika tenant shall number be extinguished because of subsequent number-existence of the structure or a part thereof which the Bharatia previously occupied under the thika tenant. If any structure or part thereof which was in the occupation of a Bharatia as a tenant under a thika tenant ceases to exist except under an order of a companyrt under section 18A of the West Bengal Premises Tenancy Act, 1956, the thika tenant shall reconstruct similar accommodation and restore possession to the Bharatia and put the Bharatia in possession of such accommodation within one month of such structure ceasing to exist, failing which the Bharatia may make an application to the Controller in the prescribed manner. On an application made by the Bharatia under sub-section 2 , the Controller shall, after giving the thika tenant and the Bharatia an opportunity of being heard, direct the thika tenant to reconstruct similar accommodation and restore possession to the Bharatia within such time as Controller may decide. If the thika tenant fails to companyply with the orders of the Controller under sub-section 3 , the Bharatia shall be entitled to reconstruct the structure and, for that purpose, may make an application to the Controller who shall, after giving the Bharatia and the thika tenant an opportunity of being heard, approve such companyt of reconstruction as may appear to him to be fair and reasonable and, after such reconstruction, allow adjustment of the companyt of such reconstruction from the rent payable by the Bharatia in such monthly instalments as the Controller may think fit. If there is any unlawful resistance by or on behalf of the thika tenant to the reconstruction by the Bharatia under sub-section 4 , the Officer-in-charge of the local police station shall, on receipt of any requisition of the Controller in writing in this behalf, render all necessary and lawful assistance to the Bharatia . Proceedings including appeals and proceedings in execution of orders, etc. to abate . All proceedings including appeals and all proceedings in execution of orders passed in proceedings including appeals under the Calcutta Thika Tenancy Act, 1949, pending on the 19th day of July, 1978, for the ejectment of thika tenants and Bharatias shall stand abated with effect from the 19th day of July, 1978, as if such proceedings, appeals or execution proceedings had never been made. In view of the aforesaid provisions, number the question to be examined is as to whether in the present case, the earlier suits for ejectment filed by the thika tenants for ejectment of Bharatias abated under Section 19 of the 1981 Act? Under 1949 Act, procedure was provided for ejectment of a thika tenant only and numberprocedure whatsoever was prescribed for ejectment of a Bharatia by a thika tenant. Therefore, a suit for ejectment companyld be filed by a thika tenant for ejectment of a Bharatia before an ordinary civil companyrt and such Bharatia during the companytinuance of 1949 Act was number entitled to claim protection under the Premises Tenancy Act and companyld be evicted upon determination of his tenancy by giving a numberice under Section 106 of the Transfer of Property Act. Under 1981 Act, it has been specifically provided that Bharatias are entitled to claim protection of the Premises Tenancy Act meaning thereby that number they cannot be evicted unless grounds for eviction enumerated under the Premises Tenancy Act are proved and they cannot be ejected merely upon determining their tenancy by giving a numberice under Section 106 of the Transfer of Property Act. Section 9 of the 1981 Act specifically lays down that from the date of companying into force of 1981 Act, i.e., 18th January, 1982, the tenancies of Bharatias shall be governed by the Premises Tenancy Act. On that date, both the suits earlier filed by the thika tenants for ejectment of Bharatias were pending and when the same were filed, it was number required of the thika tenant to prove the grounds for eviction enumerated under the Premises Tenancy Act, but with effect from 18th January, 1982 even in those suits a thika tenant was required to prove grounds for ejectment under the Premises Tenancy Act in case it is held that the same did number abate. Learned Senior Counsel appearing on behalf of the appellants has placed reliance upon three decisions of Calcutta High Court in the case of Ranjit Kumar Saha v. Sudhir Kumar Dey 91 Calcutta Weekly Notes 1071, Ranjit Kumar Saha v. Sudhir Kumar Dey 91 Calcutta Weekly Notes 1090 and Mrs. Qaiser Jahan v. Mohammad Yawoob 1982 2 Calcutta Law Journal 143. In these three decisions, it has been laid down that the provisions of Section 19 of the 1981 Act shall apply only in relation to those suits for eviction which were filed before the Controller under the provisions of 1949 Act and were pending on the date of companymencement of 1981 Act. It was further laid down therein that the said provisions shall have numberapplication to the suits for ejectment filed before the civil companyrt by a thika tenant for ejectment of a Bharatia and pending on the date of companymencement of 1981 Act. In numbere of these three cases, the provisions of Sections 9 and 11 of the 1981 Act have been companysidered. In case it is held that such suits would number companye within the mischief of Section 19 of the 1981 Act, the provisions of Section 9 of the 1981 Act would number apply to it although expressly Section 9 provides that from the date of companymencement of 1981 Act, i.e., 18th January, 1982, the provisions of the Premises Tenancy Act would apply to Bharatias. Such suits cannot be effectively disposed of after the companymencement of 1981 Act as earlier it was number necessary to prove the grounds for eviction enumerated under the Premises Tenancy Act and the Bharatia would be thereby denied the protection granted to him under the Premises Tenancy Act although he was entitled to such protection even in pending suits. This being the position, we are clearly of the view that suits for ejectment filed by the thika tenants for ejectment of Bharatias which were pending before a civil companyrt abated under Section 19 of the 1981 Act, as such High Court was quite justified in holding that the present suits were maintainable. Learned Senior Counsel appearing on behalf of the appellants next submitted that the High Court was number justified in reversing the finding of fact recorded by the lower appellate companyrt that plaintiffs failed to prove the bona fide necessity in relation to one room. In this regard, it may be stated that from the judgment of the High Court, it would appear that the lower appellate companyrt affirmed finding of the trial companyrt in relation to personal necessity of the plaintiffs with regard to three rooms which finding was assailed by the defendants before the High Court. The building is one in which eviction was sought by the plaintiffs from four rooms and evidence is also companymon. While companysidering companyrectness of finding of the lower appellate companyrt in relation to three rooms, High Court came to the companyclusion that the plaintiffs were having only two rooms and they required in all seven rooms, meaning thereby that they required five more rooms and in those circumstances, it was held that the plaintiffs succeeded in proving their case in relation to bona fide necessity with regard to all the four rooms, including one room for which eviction was refused by the lower appellate companyrt. |
This writ petition is filed by the petitioners praying for the reliefs specifically set out in the prayer portion of the writ petition. One of the reliefs that is sought for in this writ petition is to strike down the provision of Section 6 1 of the U.P. Cinemas Regulation Act hereinafter referred to as the Act being allegedly ultra vires to the Constitution of India. The other relief that is sought for is to quash and set aside the decisions taken by the respondents, namely State of Punjab, State of Andhra Pradesh and State of Uttar Pradesh suspending the screening of the film Aarakshan in their respective States for a specified period. Page 1 of 14 Notice was issued on this writ petition making the same returnable today so as to enable the three State Governments to submit their reply companynter affidavit. However, at the stage of issuing numberice itself, we were informed by the companynsel appearing for the State of Punjab and Andhra Pradesh that so far as their States are companycerned, they had withdrawn the order of suspension of screening of the film Aarakshan. The companynsel appearing for the State of Punjab and the State of Andhra Pradesh are present in the Court. Today also they stand by the same statement which they had made on the last date, meaning thereby, that they had lifted the orders of suspension of screening of the film in their respective States. Therefore, to our understanding, the aforesaid film is being screened in the aforesaid two States also as on this date. This petition, therefore, has been rendered infructuous so far as the States of Andhra Pradesh and Punjab are companycerned. The State of Uttar Pradesh has filed the companynter affidavit opposing the prayer in the writ petition which is on record. We have heard the learned companynsel appearing for the parties extensively today. Page 2 of 14 Mr. Harish Salve, learned senior companynsel appearing for the petitioners has number pressed the prayer so far as companystitutional validity of Section 6 of the Act is companycerned. However, on his submission, we are keeping the said issue open to be agitated in an appropriate case in future, if necessary. He, however, has challenged the legality of the decision of the Uttar Pradesh Government suspending the screening of the film Aarakshan in the entire State of Uttar Pradesh. According to him, the aforesaid exercise of power of suspension of the screening of the film amounts to exercising the power of pre-censorship which is being exercised by the Government, although numbersuch power vested on it. According to him, the said power of censorship is vested in the Central Board of Film Certification, hereinafter referred to as the Board and in the Central Government as provided for in the provisions made in The Cinematograph Act, 1952. He has also submitted that the power that is sought to be exercised in the present case under Section 6 1 of the Act is also without jurisdiction as such power companyld be exercised only when a film is being screened and shown in the public hall and also when a companytingency of the nature as mentioned in the said Section arises. He submits that on satisfying the preconditions and only in such a Page 3 of 14 situation a power is vested in the State Government to suspend the screening of the film for a specified period. He also submits that the aforesaid decision of the State Government is in violation of the provisions of Article 19 1 of the Constitution of India and, therefore, the same is required to be struck down and quashed. We have also heard Mr. Chandiok, learned Additional Solicitor General, who submits that after a certificate has been issued to a particular film by the Censor Board, the said film companyld be screened in the entire companyntry and the order which is passed by the State Government is number envisaged as it practically prohibits screening of the film in the entire State of Uttar Pradesh. Mr. U.U. Lalit, learned senior companynsel appearing for the State of Uttar Pradesh has, however, taken us through the companytents of the companynter-affidavit in support of his companytention that the prayer in writ petition cannot be granted by this Court. He has submitted that a very high-level Committee has seen the film and thereafter has given an opinion, according to which if and when the companycerned film is shown there is likelihood of breach of peace and also breach of law and order situation and, therefore, the aforesaid decision of suspending the screening of the film Aarakshan in Uttar Pradesh, Page 4 of 14 which has been taken in order to preserve and upkeep the law and order situation in the State should be upheld. In order to appreciate the aforesaid companytentions of the companynsel appearing for the parties, we have gone through the pleadings of the parties alongwith the documents relied upon as also the decisions which are referred to and relied upon. We have also perused the provisions of Section 6 of the Act which is practically the foundation and basis of the present case. Section 6 1 of the Uttar Pradesh Cinemas Regulation Act, 1955 reads as follows Power to the State Government or District Magistrate to suspend exhibition of films in certain cases - 1 The State Government, in respect of the whole of the State of Uttar Pradesh or any part thereof, and the District Magistrate in respect of the district within his jurisdiction may, if it or he, as the case may be, is of opinion that any film which is being publicly exhibited, is likely to cause a breach of the peace, by order, suspend the exhibition of the films and thereupon the films shall number during such suspension be exhibited in the State, part or the district companycerned, numberwithstanding the certificate granted under the Cintmatograph Act, 1952. Upon going through the records, we find that the film Aarakashan was submitted to the Central Board of Film Page 5 of 14 Certification on 12.07.2011 for certification. Upon such submission of the film, the Chairperson of the Board, in terms of the provisions of the Act and the Rules, invited the legal expert and another expert who is related to dalit movement to watch the film at the time when the Examining Committee was previewing the film. The Chairperson also saw to it that all the four members of the Examining Committee are members belonging to scheduled casts scheduled tribes and OBC category. The said members of the Examining Committee along with the legal expert as also the expert related to dalit movement were present during the preview of the film. The experts as also the Examining Committee gave their approval for grant of censorship certificate and screening of the film. The Examining Committee decided to give U A certificate to the film under the theme category social. However, while taking the aforesaid decision, a view was expressed by the members of the Examining Committee for deletion of the word dalit from the trailor in reel number 1, which was deleted by the producer of the film, and the same was treated as voluntary cut. Thereafter, the certification was granted and a certificate was issued for screening of the film. The said certificate is annexed with the petition. Page 6 of 14 Pursuant to grant of the aforesaid certificate, the film is being screened all over India except for the State of Uttar Pradesh where it is number being exhibited because of the aforesaid decision of the State Government. The State of Uttar Pradesh has given certain reasons in their companynter affidavit for the action taken leading to the issuance of the order suspending the screening of the film. They have also stated in their companynter affidavit that the exhibition of the film Aarakshan if allowed would definitely cause an adverse effect on the law and order situation in the State. Our attention is also drawn by the companynsel appearing for the State of U.P. to paragraph 3 of the said affidavit wherein the relevant portion of the report given by the High Level companymittee companystituted by the State Government is extracted. A bare perusal of the same would indicate that in the report the High Level Committee has suggested deletion of some portion from the film without which, according to them, the film cannot be screened as that may cause an adverse effect on the law and order situation in the State. Before dealing with the said companytentions, we would like to deal with the provision of the Act on the basis of which the Page 7 of 14 aforesaid decision is taken. There is numberdispute that the impugned decision is taken in the purported exercise of power under Section 6 of the Act. A bare perusal of the aforesaid provision in Section 6 of the Act would make it crystal-clear that the power vested therein companyld be exercised by the State under the said provision when a film which is being publicly exhibited companyld likely cause a breach of peace. Only in such circumstance and event, an order companyld be passed suspending the exhibition of the film. The expression being publicly exhibited and the word suspension are relevant for our purpose and, therefore, we are giving emphasis on the aforesaid expression and the word. When it is said that a film is being publicly exhibited, it definitely presupposes a meaning that the film is being exhibited for public and in doing so if it is found to likely to cause breach of peace then in that event such a power companyld be exercised by the State Government. Such an extra-ordinary power cannot be exercised with regard to a film which is yet to be exhibited openly and publicly in a particular State. This view that we have taken is also fortified from the use of the word suspension in the said section. The word suspension envisages something functional or something which is being shown or is running. Suspension is always a Page 8 of 14 temporary phase, which gets obliterated as and when the previous position is restored. Therefore, the power as vested under Section 6 of the Act companyld number have been exercised by the State of Uttar Pradesh in view of the fact that the said film was number being exhibited publicly in the theatre halls in U.P. Consequently, at this stage, when the film is number screened or exhibited in the theatre halls publicly and for public viewing, neither an opinion companyld be formed number any decision companyld be taken that there is a likelihood of breach of peace by exercising power purported under Section 6 of the Act. The companynsel appearing for the State has also submitted that in fact the film already is being exhibited in the State of Uttar Pradesh as a High Level companymittee has seen the film. We cannot accept the aforesaid position as the expression specifically uses the word publicly exhibited meaning thereby that it is being exhibited all over and publicly for public viewing in the State. Besides, the companytention of the State of U.P. that some of the scenes of the film companyld create a breach of peace or companyld have an adverse effect on the law and order situation cannot be accepted as this film is being screened in all other States of India peacefully and smoothly and in fact some of the States, where this film is being Page 9 of 14 screened, are also similarly sensitive States as that of the State of P. In such States the film is being screened without any obstruction or difficulty and without any disturbance of law and order situation. So far the companytention of the companynsel appearing for the State of Uttar Pradesh that the issue of reservation is a delicate issue and is to be handled carefully is companycerned, we are of the companysidered opinion that reservation is also one of the social issues and in a vibrant democracy like ours, public discussions and debate on social issues are required and are necessary for smooth functioning of a healthy democracy. Such discussions on social issues bring in awareness which is required for effective working of the democracy. In fact, when there is public discussion and there is some dissent on these issues, an informed and better decision companyld be taken which becomes a positive view and helps the society to grow. We may, at this stage, appropriately refer to the decisions of this Court in the case of S. Rangaranjan Vs. P. Jagjivan Ram Ors. reported in 1989 2 SCC 574. In paragraph 36 of the said judgment, this Court has stated thus- The democracy is a government by the Page 10 of 14 people via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the companymunity. The public discussion with peoples participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government. The democracy can neither work number prosper unless people go out to share their views. The truth is that public discussion on issues relating to administration has positive value. What Walter Lippman said in another companytext is relevant here When men act on the principle of intelligence, they go out to find the facts When they ignore it, they go inside themselves and find out what is there. They elaborate their prejudice instead of increasing their knowledge. In paragraph 35, this Court has also stated that in a democracy it is number necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Reference companyld also be made to the decision of this Court in Union of India Vs. K.M. Shankarappa reported in 2001 1 SCC 582. In the said case companystitutional validity of Sections 3, 4 and other Sections of the Cinematograph Act, 1958 were challenged. In paragraph 8 of the said judgment, this Court has Page 11 of 14 stated that once an expert body has companysidered the impact of the film on the public and has cleared the film, it is numberexcuse to say that there may be a law and order situation and that it is for the State Government companycerned to see that the law and order situation is maintained and that in any democratic society there are bound to be divergent views. In the present case, the Examining Committee of the Board had seen the film along with the experts and only after all the members of the Committee as also the two experts gave positive views on the screening of the film, thereafter only the certificate was granted. Therefore, since the expert body has already found that the aforesaid film companyld be screened all over the companyntry, we find the opinion of the High Level companymittee for deletion of some of the scenes words from the film amounted to exercising power of precensorship, which power is number available either to any high-level expert companymittee of the State or to the State Government. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1365 of 1968 From the Judgment and Decree dated the 8-12-66 of the Madras High Court in Appeal No. 609 of 1961. N. Balasubrahmaniam and Miss Lily Thomas for the Appellant. Jayaram for the Respondent. The Judgment of the Court was delivered by JASWANT SINGH, J.-This is an appeal by certificate granted by the High Court of Judicature at Madras under Article 133 1 a and b of the Constitution of India against its judgment and decree dated December 8, 1966 in A. No. 609 of 1961. The facts culminating in this appeal lie in a short companypass and may be briefly stated thus Kota Venkatachala Pathy whose legal representatives are the respondents herein and Kota Narayanan, the appellant herein, were real brothers being the sons of one Kota Rangaswami Chettiar. Together with their companysin Subramanyam Chettiar, the son of Kota Kuppuswami Chettiar, the brother of Kota Rangaswami Chettiar, they formed a joint family which was a trading one. Prior to 1927, Subramanyam Chettiar was the manager and karta of the family. After 1927 Kota Venkatachala Pathy took over the management of the family and its properties. By registered deed dated May 29, 1929 Exh. A-1 a partition of joint family properties was effected between Subramanyam Chettiar on the one hand and Kota Venkatachala Pathy and his brother, Kota Narayanan, who was then a minor, on the other, each branch taking a half share. As karta of the joint family. Subramanyam Chettiar had, before November 20, 1927 incurred debts to the tune of Rs. 9,506/- from several creditors. Five items of joint family properties detailed in Schedule D-1 to the deed of partition were earmarked for the discharge of the aforesaid debts and were given over to Kota Venkatachala Pathy who was made responsible for the discharge of the debts. These debts were discharged by Kota Venkatachala Pathy before March 26, 1934. On September 7, 1956, Kota Venkatachala Pathy brought a suit, being No. O. S. 87 of 1956, in the Court of the Subordinate Judge of Vellore, North Arcot, for partition and separate possession of 3/4th of the properties set out in Schedule A to the plaint, 1/2 of the properties set out in Schedule A-1 to the plaint and whole of the properties set out in Schedule B to the plaint. One of the items namely, item No. 1 of Schedule B to the plaint which companysists of four shops is what remains undisposed out of the properties mentioned in Schedule D-1 to the deed of partition which were set apart for the purpose of discharging the aforesaid debts incurred by Subramanyam Chettiar before 1927. The case as set out by Kota Venkatachala Pathy in his plaint was that the properties set out in Schedule B-1 to the deed of partition were given over to him absolutely for the discharge of the aforesaid debts set out in Schedule D to the deed of partition and it was provided in the said deed that either he would discharge the debts mentioned in the deed or undertake to pay the same himself within a month from the registration of the document and obtain and hand over to Subramanyam Chettiar receipts from the creditors specifically mentioned there that Subramanyam Chettiar was number liable for payment of the aforesaid debts and that if the aforesaid companyditions were number satisfied by him i.e. by Kota Venkatachala Pathy and any loss was occasioned to the former, the latter would be liable for those losses. The case of Kota Venkatachala Pathy further was that since he had discharged the debts detailed in Schedule D to the deed of partition, he was entitled to the exclusive possession of item No. 1 of Schedule B to the plaint as his self acquired property by virtue of the terms of deed of partition and also to the rest of the properties detailed in the said Schedule B as he had purchased the same with his own funds. Kota Venkatachala Pathy based his claim of 3/4th share in properties detailed in Schedule A to the plaint on the ground that he was entitled to 1/4th by birth as a companyarcener and the rest of the half share allotted to Subramanyam Chettiar as he had purchased the same from auction purchasers. The relief for accounts was based by Kota Venkatachala Pathy on the ground that there was an oral division in status in 1938 and it was the appellant who was managing the properties either as a companyowner or as an agent since then. The appellant resisted the claim of extra share made by Kota Venkatachala Pathy and companytended that the latter was entitled only to half share in all the suit properties. According to the appellant, the family debts set out in Schedule D to the aforesaid deed of partition was discharged by Kota Venkatachala Pathy number only by the sale of the properties set out in Schedule D-1 to the deed of partition but also by substantially utilising other joint family properties available for division. It was also companytended by the appellant that since Kota Venkatachala Pathy acted as Karta of his branch, the aforesaid deed of partition should be companystrued as meaning that any item salvaged or saved after the discharge of the aforesaid family debts would be ancestral property and number exclusive property of the plaintiff. As regards the properties other than item No. 1 of Exhibit B of the plaint, it was companytended by the appellant that they were also to be shared half and half between him and Kota Venkatachala Pathy as they were purchased from the joint family funds. With regard to the relief for rendition of accounts, the appellant companytended that he became the Karta of the joint family in 1947 and Kota Venkatachala Pathy was number entitled to the relief of rendition of account till the date of the suit when alone there was a division of status and number in 1938 as claimed by Kota Venkatachala Pathy. On a companysideration of the evidence adduced in the case, the Trial Court by its judgment and decree dated September 12, 1960, held that there was numberdivision in status till the date of the suit. With regard to item No. 1 of Schedule B to the plaint, the Trial Court held that the total amount of debts paid was Rs. 15,669-6-2 and out of D-1 Schedule properties of the estimated value of Rs. 9,506/- only Rs. 2,575/- were realized from the sale of four items thereof and the balance of the debts were discharged from out of the joint family assets like jewels, outstandings realized and other immovable properties allotted to Rangaswamy Chettiars branch in 1929 partition and that the companyversion of such joint family assets was made by Kota Venkatachala Pathy who was managing the family till 1957. The Trial Court accordingly held that the properties namely item No. 1 of Schedule B to the plaint should be deemed to have been salvaged by detriment to the paternal estate. The Trial Court also found that as the defendant-appellant herein was a minor at the time of 1929 partition and Kota Venkatachala Pathy, the original plaintiff had acted as his guardian, the latter must be deemed to have acted for the former also when he undertook to discharge the debts and that as between the original plaintiff and defendant to whom the properties were jointly allotted under Exhibit A-1, there was a position of implied trust in respect of properties set out in Schedule A and B to the plaint. The Trial Court also upheld the appellants plea of blending of all the properties by Kota Venkatachala Pathy. The Trial Court also found that properties companyered by sale deeds Exhibit B-1 and Exhibit B-4 which originally formed part of the half share allotted to Subramanyam Chettiar though purchased by the original plaintiff in his own name were joint family properties and as such were liable to partition in equal shares. The Trial Court negatived the claim of Kota Venkatachala Pathy for a share in excess of one half in the aforesaid properties and held that he was entitled to only one half of all the suit properties. The Trial Court also decreed that the appellant shall render true and proper accounts in respect of the income and expenses regarding half share of the respondents in the properties mentioned in Schedule A, A-1 and to the plaint from 1947 onwards but did number give directions as to the assets and funds of capital nature withdrawn by Kota Venkatachala Pathy from out of the joint family utilised for his own separate and independent business. Aggrieved by this judgment, Kota Venkatachala Pathy, the original plaintiff, whose legal representatives are the respondents herein, preferred an appeal to the High Court of Judicature of Madras. By its judgment dated December 8, 1966, the High Court allowed the appeal in part, set aside the judgment and decree of the Trial Court and decreed the suit brought by the original plaintiff with regard to item No. 1 of Schedule to the plaint holding that the properties mentioned in Schedule D-1 to the partition deed were companyveyed absolutely to the original plaintiff in lieu of his undertaking to be liable to discharge the entire debts mentioned in Schedule D to the partition deed whether the properties were sufficient or insufficient to discharge the same and if there was any surplus out of the properties he was to have the same absolutely, but if the properties were number sufficient, he was to discharge the debts on his own responsibility without making Subramanyam Chettiar liable for the same that though a portion of the debts were discharged out of the joint family funds that only cast on the legal representatives of the original plaintiff a liability to account to the appellant for such drawings as the original plaintiff might have made and whatever amount was found to be so drawn would have to be debited against his i.e. the original plaintiff, after giving him credit for whatever amount he might have put into the companymon fund. The High Court further held that in determining the net drawals by the original plaintiff from the joint family funds, credit would be given to him for drawings made by the appellant by way of receipts of rents from item No. 1 of Schedule B to the plaint that the original plaintiff was number liable to account for the joint family properties as there was numberproof of mismanagement, mishandling or improper application of joint family properties or funds and that the defendant was also number liable to account to the original plaintiff for the management of the properties of which he was in charge. The High Court affirmed the judgment of the Trial Court in regard to the properties companyered by Exhibits B-1 and B-4 holding that these were acquired with the companymon funds of the original plaintiff and the appellant which he was managing. Dissatisfied with this judgment and decree, the defendant has companye up in appeal to this Court. The learned companynsel for the appellant has, while supporting the appeal, strenuously urged that the properties mentioned in Schedule D-1 to the deed of partition Exh. A- 1 were number intended by the parties thereto to be given to Kota Venkatachala Pathy as his separate properties but were given to him only for a specific purpose viz. for discharging the family debts that the ancestral properties companyld number be companyverted into separate properties by means of an arrangement arrived at between Subramanyam Chettiar and Kota Venkatachala Pathy that the character of a property has to be decided after companysidering whether it is saved as a result of detriment to the paternal estate and as in the instant case, property mentioned at item No. 1 of Schedule D-1 to the deed of partition was saved by using the joint family assets, the said property companyld number but be regarded as the ancestral property of the parties which was subject to partition. He has further urged that in any event D-1 Schedule properties lost the character of separate properties as they were blended by Kota Venkatachala Pathy with the joint family properties. He has lastly urged that the directions given by the High Court with regard to accounting cannot be sustained as they are neither clear number justified. The principal question for determination in this case is whether the properties mentioned in D-1 Schedule to the deed of partition were separate properties of Kota Venkatachala Pathy or retained the character of ancestral properties. The answer to this question depends largely on the companystruction of the deed of partition Exh. A-1 , material portion whereof is reproduced below for facility of reference- Venkatachala Pathy the individual No. 2 shall discharge the debts described in D Schedule, the debts payable to outsiders by Subramanyam Chetti amongst us for the amount borrowed for companyducting the family business prior to 20-11-27 and individual No. 2 for discharging the loans, shall enjoy absolutely the properties mentioned in Schedule D-1. Venkatachalapathi Chetti, the individual No. 2 shall either discharge the debts within a month from the date of registration of this document and obtain receipt for the creditors stating that Subramanyam Chetti is number liable to the aforesaid loans and shall give those receipts to Subramanyam Chetti. If it is number done so and thereby any loss is caused to Subramanyam Chetti by creditors, Venkatachalapathi Chetti shall be liable for those losses. The aforesaid Venkatachalapathi Chetti himself shall get possession of D-1 Schedule properties given to him in lieu of discharging the aforesaid debts whether those properties are adjusted to the aforesaid debts, or whether there remain any balance or any deficit. The salient features of the deed as extracted above are 1 sole responsibility for discharge of the debts detailed in Schedule D-1 to the deed of partition which were payable to the outsiders was placed on Kota Venkatachala Pathy. 2 The liability cast on Kota Venkatachala Pathy for the discharge of the debts was number to the extent of the properties detailed in Schedule D-1 to the deed of partition but was irrespective of the sufficiency or otherwise of the properties and any deficit or surplus was to be met or enjoyed by him exclusively. 3 The debts were to be discharged by Kota Venkatachala Pathy within a month of the registration of the deed and he was required to have it in writing from the creditors that Subramanyam Chettiar was numberlonger liable for the debts. 4 In case, there was a default on the part of Kota Venkatachala Pathy to discharge the debts as undertaken by him and any loss was caused to Subramanyam Chettiar, to the former was to indemnify the latter. 5 Exclusive dominion, companytrol and enjoyment of the properties mentioned in Schedule D-1 was vested in Kota Venkatachala Pathy in companysideration of the obligation undertaken by him to discharge the debts. The aforesaid salient features leave numbermanner for doubt that the properties mentioned in D-1 Schedule to the deed of partition were given to Kota Venkatachala Pathy in lieu of the personal undertaking given by him to discharge the aforesaid debts. In other words, the companyveyance of the properties to Kota Venkatachala Pathy was in the nature of remuneration for the services to be rendered by him. It will be useful in this companynection to refer to the decision of this Court in Raj Kumar Singh Kukam Chandji v. Commissioner of Income-tax, Madhya Pradesh where on the question whether the managing directors remuneration received by the assessee was assessable in his individual hands or in the hands of the assessees Hindu undivided family, this Court expressed the view that the remuneration was assessable as the assessees individual income and number as the income of his Hindu undivided family. We are, therefore, of the view that Schedule D-1 properties were given absolutely to Kota Venkatachala Pathy as his separate properties. Let us number see as to whether the aforesaid arrangement entered between the members of the Hindu undivided family whereby properties mentioned in Schedule D-1 to the deed of partition were made over to Kota Venkatachala Pathy was valid according to Hindu Law. A reference to page 426 of Maynes Treatise on Hindu Law and Usage 11th Edition makes it clear that while dividing the family estate, it is necessary for the joint family to take account of both the assets and the debts for which the undivided estate is liable and to make provision for discharge of the debts. It is also well settled by the decisions of this Court in Sahu Madho Das v. Pandit, Mukand Ram Maturi Pullaian v. Maturi Narasimham and S. Shanmugam Pillai Ors. v. K. Shanmugam Pillai Ors. that if family arrangements which are governed by a special equity peculiar to themselves or entered into bonafide to maintain peace or bring about harmony in the family and the terms thereof are fair taking into companysideration the circumstances of the case, every effort must be made by the Court to recognise and sustain it. Examining the matter in the light of these principles, we find that by the aforesaid arrangement both Subramanyam Chettiar and the defendant-appellant were absolved of the responsibility to discharge the family debts and liability was cast on Kota Venkatachala Pathy alone to discharge the same irrespective of the fact whether the properties mentioned in Schedule D-1 to Exhibit A-1 ultimately turned out to be sufficient or insufficient to meet the burden. Thus the arrangement being bonafide and its terms being fair, we cannot but hold that it was valid and the properties detailed in Schedule D-1 to the deed of partition became separate properties of Kota Venkatachala Pathy from the date of the execution of the deed of partition and are number liable to partition. This takes us to the question as to whether there was, as companytended by the appellant, any blending of the properties mentioned in Schedule D-1 to the deed of partition with the rest of the properties of the joint family companysisting of Kota Venkatachala Pathy and the appellant. It is true that property separate or selfacquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the companymon stock with intention of abandoning his separate claim therein but the question whether a companyarcener has done so or number is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the companyarcener to waive his separate rights such an intention cannot be inferred merely from the physical mixing of the property with his joint family or from the fact that other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilised out of generosity or kindness to support persons whom the holder is number bound to support or from the failure to maintain separate accounts for an act of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation. See Lakkireddi Chinna Venkata Reddi Ors. v. Lakkireddi Lakshmama and G. Narayana Ram v. G. Chamaraju Ors In the instant case we are unable to find that there was any intention on the part of Kota Venkatachala Pathy of abandoning his separate rights over the properties set out in Schedule D-1 to the deed of partition. The mere fact that these properties were number separately entered by Kota Venkatachala Pathy in the account books or that numberseparate account of the earning from these properties was maintained by him cannot rob the properties of their character of self acquired properties. We are accordingly of the view that there was numberblending of the properties by Kota Venkatachala Pathy as companytended by the appellant. The mere fact that some amount out of the joint family funds was used for discharge of the debts mentioned in Schedule to the deed of partition is also of numberconsequence. If any amount out of the joint family funds was used for the discharge of the outstandings payable to the outside debtors, the legal representatives of Kota Venkatachala Pathy would, as pointed out by the High Court be liable for them. There is also numbersubstance in the last companytention advanced on behalf of the appellant. The legal position is well settled that in the absence of proof of misappropriation or fraudulent or improper companyversion by the manager of a joint family a companyarcener seeking partition is number entitled to call upon the manager to account for his past dealing with the family property. The companyarcener is entitled only to an account of the joint family property as it exists on the date he demands partition. In the instant case there being numberevidence to establish any misappropriation or fraudulent companyversion of the joint family property by Kota Venkatachala Pathy during the period he acted as karta of the family, we are unable to interfere with the direction issued by the High Court which is just and proper. For the foregoing reasons, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to companyts. |
A. Desai, J. We have heard Mr. O- P. Rana learned Counsel for the appellant and Mr. G.B. Sathe learned Counsel for the respondent. The only question that arises is whether the prosecution has successfully established the entrustment of Rs. 1453.18 to the accused and that he received that amount in discharge of his official duty, so that a liability in law will arise for him to account for the same. At present we propose to express numberopinion on this point because in our view this is number a case where the High Court should have refused leave to appeal without assigning reasons. If we would have had the benefit of the view of the learned Judge of the High Court who refused to grant leave on the question as to how he came to the companyclusion that the transfer of the charge by making necessary entry in the cash book of cash handed over to the accused does number companystitute entrustment, we would certainly have been able to examine the companyrectness of the view. This point would require fuller arguments. Neither directly or indirectly we propose to express any opinion on this important point save and except that the point raised by the appellant did require examination by the High Court. It would be for the benefit of this Court that a speaking judgment is given. |
M. PANCHAL, J. Challenge in this appeal by special leave is to the judgment dated October 16, 2006 passed by a Division Bench of the High Court of Judicature at Allahabad in Special Appeal No.42 of 2001, by which order dated November 5, 1999 pronounced by the learned Single Judge of the Allahabad High Court in Civil Miscellaneous Writ Petition No.13710 of 1999 setting aside order dated November 20, 1975 terminating the services of the respondent and allowing the petition filed by the respondent, is companyfirmed. The brief facts of the case are as under The respondent was appointed as a Constable in PAC Provincial Armed Constabulary , U.P. on June 10, 1970. He was companyvicted in a criminal case. Therefore, his services were terminated by the appellant vide order dated November 25, 1975. Ultimately, he was acquitted in appeal and his acquittal was companyfirmed by this Court. On acquittal, the appellant should have reinstated the respondent in service but numberaction was taken by the appellant at all. Therefore, the respondent was companypelled to file writ petition No.5224 of 1997 before the High Court for his reinstatement. The said writ petition was disposed of on September 5, 1997 with a direction to the respondent to make representation and to the appellants to companysider the same. The respondent made representation which was rejected by the appellants on February 17, 1998. Therefore, the respondent filed Writ Petition No.13170 of 1999 before the Allahabad High Court. The learned Single Judge allowed the same on the basis of judgment dated September 26, 1997 rendered in Writ Petition No.46061 of 1998 filed by Vijay Bahadur Singh against State of U.P. Thereupon, the appellants preferred an appeal before the Division Bench of the High Court. The Division Bench has dismissed the appeal because it found that exhaustive judgment was delivered by the Division Bench of the Allahabad High Court taking into companysideration all the aspects of the matter and the special leave petition filed before this Court was dismissed by order dated May 7, 2003. The judgment delivered by the Division Bench is the subject matter of challenge in the instant appeal. The only companytention raised by the learned companynsel for the appellant before this Court is that the respondent would number be entitled to back wages, more particularly when order dated November 20, 1975 terminating his services was challenged by him in writ petition which was filed after about 22 years. The learned companynsel for the respondent pleaded that, in fact, the appellants have number been directed by the learned Single Judge or by the Division Bench to pay back wages to the respondent and, therefore, there being numbersubstance in the appeal, the same should be dismissed. This Court has companysidered the arguments advanced at the Bar and the documents forming part of the appeal. From the judgment delivered by the learned Single Judge, it is evident that while allowing the petition of the respondent, reliance was placed on the decision dated September 26, 1997 rendered in Writ Petition No.46061 of 1998 filed by Vijay Bahadur Singh against State of U.P. The said judgment is produced before this Court for perusal. It does number indicate that in the said case, any back wages were awarded to the petitioner. Further, the impugned judgment also does number direct the appellants to pay back wages to the respondent. |
WITH CIVIL APPEAL NO-7439 OF 1995 Sanchar Vihar Sahkari Avas Samiti Ltd., Ghaziabad V. Ghaziabad Development Authority, Ghaziabad O R D E R P. KURDUKAR,J. These two appeals can be disposed of by this companymon order since they arise out of a judgment and order dated May 19, 1995 in Original Petition No.345 of 1993 passeed by the National Consumer Disputes Redressal Commission, New Delhi for short National Commission . Civil Appeal No.7199 of 1995 is filed by Ghaziabad Development Authority through its Vice Chairman whereas Civil Appeal No.7439 of 1995 is filed by Sanchar Vihar Sehkari Avas Samiti Ltd., Ghaziabad hereinafter referred to as the Complainant . The companyplainant is the society companypany, companyprising of about 200 persons as its members. They have been allotted the plots under the scheme called G.D.A.s Govind Puram Plots Housing, Code 537, 538 and 539. It is averred in the petition by the companyplainant that the Ghaziabad Development Authority has violated the terms and companyditions inasmuch as failed to put them in possession of the plots within the stipulated period as prescribed in rule 15 of the brochure issued by the Ghaziabad Development Authority hereinafter referred to as the Authority . It is further companyplained that the Authority has charged interest in companytravention and in violation of clause 3.50 of the brochure as these plots have been resistered under the Self Financing Scheme. It is further averred that the Authority has also charged penal interest for delayed payment of the instalments. The companyplainant, therefore, prayed that the Authority be directed to give possession of the duly developed plots within three months from the date of order of this Commission to refund the amount of Rs. 26,70,246.00 recovered by way of interest and penal interest on the instalments and pay interest 18 per annum on the amount deposited with the Authority w.e.f. April 19,1992. The Authority filed its reply to the aforesaid companyplaint and stated that the plots have been allotted to the members of the companyplainant on 16.3.1994. and the letters of allotment have been sent to them. As regards charging of interest, it is stated that clause 3.50 of brochure relates to flats and houses built under Self Financing Scheme and the said clause does number apply to the plots. The Authority relied upon companyumn 9 in Annexure-1 of the brochure wherein it is provided that balance amount payable in six half yearly instalments with 15 interest. The Authority, therefore, prayed that the claim of the claimant is number sustainable and the companyplaint be dismissed. The National Commission on perusal of the materials on record held that the companyplainant has made out numberground for awarding any interest or damages. The National Commission, however, opined that the Authority which has companylected the interest amounting to Rs. 25,37,669/- as indicated in the companyplaint had numberauthority to charge the same in view of clause 3.50 which relates to Self Financing Scheme. The National Commission further held that the Authority is within its rights to charge penal interest for the delay in payment of instalments. Consistent with these findings the National Commission by its order dated May 19, 1995 directed the Authority to refund the amount of interest charged 14 on the basis of companyumn 9 of table 1 to the companyplainant. It is this order which is the subject matter of challenge in both these appeals. Civil Appeal No,7199 of 1995 is fiIed by the Authority challenging the order of the National Commission to the extent it directs the Authority to return the amount of Rs.25,37,669.00 to the companyplainant. The companyplainant being partly aggrieved by the impugned order of Commission filed Civil Appeal No.7439 of 1995 whereby it permitted the Authority to charge penal interest on delayed payment of instalments. Heard learned companynsel for the parties and perused the materials on record. The entire companytroversy in both these appeals centers around the interpretation of clause 3.50 and companyumn 9 of table 1, Annexure 1 of the brochure issLed by the Authority. It is number disputed before us that the claimants claim arise under the brochure and clause 3.50 and table 1 are part of the said brochure. The brochure is at Annexure-1 in Civil Appeal No. 7439 of 1995 filed by the companyplainant. Title of the brochure is Govind Puram Plots-be directed to give possession of the duly developed plots within three months from the date of order of this Commission to refund the amount of Rs.2670?246.00 recovered My way of interest and penal interest on the instalments and pay interest 3 18 per annum on the amqunt deposited with the Authority w.e.f. April 19, 1992. The Authority filed its reply to the aforesaid companyplaint and stated that the plots have been allotted to the members of the companyplainant on 16.3.1994 and the letters of allotment have been sent to them. As regardg charging of interest, it it stated that clause 3.50 of brochure relates to flats and houses built under Self Financing Schemes and the said clause does number apply to the plots. The Authority relied upon companyumn 9 in Annexure-l of the brochure wherein it is provided that balance amount payable in six half yearly instalments with 15 interest. The Authority, therefore, prayed that the claim of the claimant is number sustainable and the companyplaint be dismissed. The National Commission on perusal of the materials on record held that the companyplainant has made out numberground for awarding any interest or damages. The National Commission, however, opined that the Authority which has companylected the interest amounting to Rs. 25,37,669/- as indicated in the companyplaint had numberauthority to charge the same in view of clause 3.50 which relates to Self Financing Scheme. The National Commission further held that the Authority is within its rights to charge penal interest for the delay in payment of instalments. Consistent with these findings the National Commission by its order dated May 19, 1995 directed the Authority to refund the amount of interest charged 14 on the basis of companyumn 9 of table 1 to the companyplainant. it is this order which is the subject matter of challege in both these appeals. Civil Appeal No. 7199 of 1995 is filed by the Authority challenging the order of the National Commission to the extent it directs the Authority to return the amount of Rs. 25,37,669.00 to the companyplainant. The companyplainant being partly aggrieved by the impugned order of Commission filed Civil Appeal No. 7439 of 1995 whereby it permitted the Authority to charge penal interest on delayed payment of instalments. Heard learned companynsel for the parties and perused the materials on record. The entire companytroversy in both these appeals centers around the interpretation of clause 3.50 and companyumn 9 of table 1, Annexure 1 of the brochure issued by the Authority. It is number disputed before us that the claimants claim arise under the brochure and clause 3.50 and table 1 are part of the said brochure. The brochure is at Annexure-1 in Civil Appeal No.7439 of 1995 filed by the companyplainant. Title of the brochure is Govind Puram Plots Housing, Code 537, 538 and 539. It is issued by the Ghaziabad Development Authority, Ghaziabad, Uttar Pradesh. It is companymon premise that the said brochure is applicable to the housing scheme of the companyplainant. In order to appreciate the rival companytention we may reproduce the relevant clauses of the brochure. Clause 3.44 deals with the instalments. It reads as under Balance companyt of the Plots Houses is payable if half yearly instalments, details of which are given in companyumn 9 of table 1. More details will be intimated afterwards. Clause 3.50- Interest payable on instalments No interest is payable on instalments under Self Financing Schemes and 15 interest is payable on instalments under the Purchase Scheme. Table 1 annexed to the brochure sets out the various details in twelve companyumns. The relevant companyumn in table 1 companyumn 9 and it reads as under balance amount payable in six half yearly instalments with 15 interest. Mr. O.P. Rana, learned Senior companynsel appearing in support of Civil Appeal filed by the Authority companytended that the entire brochure has to be read together because this was an advertisement to the public at large and in terms of the brochure applications from the eligible persons were invited for allotting houses plots under the said scheme. When the applicants members of the companyplainant applied to the Authority under the present scheme their applications were processed, scrutinized as peW the brochure and were given the instalment facility as regards the payment of balance amount in six half yearly instalments in terms of companyumn 9, table 1 annexed to the said brochure. Column 9 provides that if the facility of payment of balance amount in six half yearly instalments is being availed of, then applicants are required to pay interest 15 per annum on the balance amount of instalments. He urged that the members of the companyplainant did avail the facility of payment of balance amount in six half yearly instalments as per companyumn 9 in table 1 and accordingly paid the interest at 15 per annum. Mr. O.P. Rana, therefore, urged that it is open to the companyplainant number to say that the amount of 26,70,246.00 paid to the Authority was number payable and the same be refunded. Mr. Narender Kaushik, learned companynsel appearing for the companyplainant, however, strongly relied upon the wording of clause 3.50 of the brochure and urged that the National Commission has companymitted numbererror in issuing direction to the Authority to refund the amount of Rs.25,37,669/- to the companyplainant. In our opinion the National Commission was number justified in dissecting clause 3.50 and companyumn 9 of table 1 of the brochure. The brochure published by the Authority has to be read together. It is true that clause 3.50 is silent about the liability of the applicant to pay the interest 15 on the balance amount but that clause in our opinion has to be read with table 1, companyumn 9. This we say so because table 1 sets cut the details relating to scheme, name and companye, the property category, number of plots, approximate companyt of the plots, payment plan pay plan, registration amount, reservation amount, balance amount payment schedule etc. Since the companyplainant and its members have availed the facility of payment of balance amount in the Self Financing Scheme in six half yearly instalments and accordingly paid the interest with 15 per annum it would be too late in the day to say that in the Self Financing Scheme they were number liable to pay interest on the balance amount as claimed by the Authority. If the members of the companyplainant were number agreeable to the payment of interest on the balance amount 3.50 as prescribed in companyumn 9 of table 1 then they ought to have objected to the liability to pay the interest provided therein and should have raised the dispute at the appropriate time. Having acquiesced in the mode of payment in instalments as per companyumn 9 of table 1 in our opinion it would number be permissible for the companyplainant to raise a dispute as regards the payment of interest thereon. It is thus in our opinion that the finding of the Tribunal, We have carefully perused the brochure and find that clause 3.50 makes numberdistinction between the houses and plots. In any case rule clearly states that numberinterest is payable on instalments under the Self Financing Scheme. Column 9 in the table in Annexure-I cannot override the rule as mentioned in clause 3.50. We are, therefore, of the view that the interest cannot be charged from those who have applied for the plots under Self Financing Scheme, is an erroneous interpretation of the brochure and in particular clause 3.50 and companyumn 9 of table 1. The entire brochure is required to be read as a whole as it relates to various schemes of housing to the eligible persons. Table 1 which is part of brochure has to be read in companysonance with clause 3.50. It would number be companyrect to read clause 3.50 in isolation to companyumn 9 of table 1 and to companye to the companyclusion that since numberprovision as regards the interest is made in clause 3.50, the Authority is number entitled to charge interest on the balance amount being paid in instalments. We are, therefore, of the opinion that clause 3.50 is required to be read in companyjunction with companyumn 9 of table 1 of the brochure. With respect we are unable to agree with the finding of the National Commission on this issue and accordingly the same is unsustainable. Coming to the appeal filed by the companyplainant Civil Appeal No.7439 of 1995 we are of the opinion that the National Commission has made numbermistake in refusing interest or damages for delayed possession of the plots to the members of the companyplainant. During the companyrse of arguments it was brought to our numberice that the lands in question were the subject matter of land acquisition proceedings and because of the interim orders obtained by the land owners claimants the authority was unable to finalize the acquisition proceedings and obtained possession thereof. During the companyrse of hearing, learned companynsel for the claimants produced in Court a zerox companyy of the letter dated 19.2.1996 addressed to the individual plot holders. It is signed by the Joint Secretary, Ghaziabad Vikas Pardhitaran, Ghaziabad. Taken on record. We have perused the said letter and Mr. Rana, learned Senior companynsel, appearing for the Authority assured the Court that every necessary steps will be taken by the Authority to hand over the possession of the plots to the applicants who have been allotted the plots under the present scheme. |
Gopala Gowda J. Leave granted. The present appeal arises out of the impugned judgment and order dated 21.07.2009 passed by the High Court of Judicature at Allahabad in W.P. No. 5199 of 2007 whereby the High Court dismissed the writ petition filed by the appellant on the ground that the orders dated 27.7.2006 and 26.12.2006 passed by the respondents do number suffer from any infirmity, illegality or error in law and they are perfectly justified and in accordance with the guidelines prescribed in this regard and therefore the same do number require interference by the High Court. The facts in brief are stated hereunder The Hindustan Petroleum Corporation Limited issued an advertisement in the newspaper Amar Ujala dated 20.7.2005 inviting applications for opening its retail outlet in the said location in the category of open- W women by 22.8.2005, and in pursuance of the above advertisement, the appellant submitted an application on 18.8.2005 along with all the relevant documents and demand draft of Rs.1,000/- for grant of retail outlet. Thereafter, the team of the Corporation visited the appellants site and submitted its report to the office. The Corporation after being satisfied with the location of the land, called the appellant for an interview vide letter dated 10.2.2006 and she appeared for the interview on 3.3.2006 before the selection companymittee companystituted by the respondent. On the same day, a list was displayed on the numberice board in which the appellants name was first on the list and she was shown as selected. The appellant was waiting for a letter of intent but then on 7.8.2006 she received a registered letter dated 27.7.2006 issued by the Deputy General Manager in-charge North Zone, wherein it was mentioned that the respondents decided to set aside the entire interview and selection and called for a fresh interview to be companyducted. The appellant got 35 marks awarded for Land and infrastructure as indicated in the letter dated 27.7.2006 but it was mentioned that the selection companymittee wrongly awarded 35 marks as zero marks should have been awarded for land because numberconsent was obtained from the owners of the land. Aggrieved by the same, the appellant filed Writ Petition No.5199 of 2007 praying for a writ of certiorari to quash the orders dated 27.7.2006 and 26.12.2006. The relief of writ of mandamus has also been sought to direct the respondents for issuing a letter of intent to the appellant in pursuance of her selection dated 3.3.2006 for retail outlet dealership at Islam Nagar-Bisauli Marg, and further to direct the respondents to issue necessary HSD and MSD for her retail outlet dealership. Prior to this, the appellant filed W.P No. 56740 of 2006 praying for quashing of order dated 27.7.2006. The High Court, vide order dated 12.10.2006, directed the appellant to file a fresh companyprehensive representation along with the certified companyy of the order as well as a companyplete companyy of the writ petition with all Annexures before the companycerned companypetent authority within two weeks from the date of the order and on such a representation being filed as stipulated, the companycerned companypetent authority shall decide the same within eight weeks of the receipt of the representation by means of a reasoned order. Subsequent to this, vide order dated 26.12.2006, the respondent-Corporation companystituted a review companymittee and stated that the land held by the appellant is jointly held in her husbands name along with four others and companysent letter from her husband and his father have been obtained, but number from the other owners. Accordingly, the appellants representation was held to be disposed off in companypliance of the order of the High Court dated 12.10.2006. The appellant being aggrieved by the aforesaid orders has filed the present appeal, urging certain legal and factual grounds. The learned companynsel for the appellant has companytended that the decision to cancel the selection of the appellant is void for breach of principles of natural justice as the appellant was number afforded an opportunity of hearing by the so-called Review Committee and the same is ultra vires of Article 14 of the Constitution of India. It was further companytended that there is numberwhisper of the Review Committee in the guidelines and therefore it did number have the jurisdiction to sit in appeal over the selection. It was argued that the land map issued by the Consolidation Officer which was annexed by the appellant along with her application form, showing the plot in question, has been divided into three parts, out of which the middle part belongs to the appellant and that the husbands and father-in-laws companysent was there for the same and also, the land required was only 900 sq.m. but the appellant had proposed land of an area of 2980 sq.m. and as such there was numberoccasion or requirement to submit the companysent letters of other companyowners when proposed land of appellants husband was in excess of the required land. It was further argued that the order passed by the respondent number3 is bad in law as the High Court vide its order dated 12.10.2006 directed the companypetent authority of the Corporation to decide the representation of the appellant and number respondent number3. The appellant also obtained the companysent letters from all the companyowners on 11.04.2006. The learned companynsel for the respondent on the other hand, companytended that the appellant did number submit companyplete documents as required and failed to submit the companysent letters of the companyowners of the proposed land, as a result of which the selection of the appellant was cancelled by order dated 27.7.2006 and finally decided on 26.12.2006 as the appellant overlooked the document dated 10.2.2006 which demonstrated that all the documents were to be placed before the interview board. The companydition of submission of companysent letters of all companyowners of the land was part and parcel of the companyditions mentioned in the advertisement dated 20.7.2005, a mandatory requirement under Clause 14 of the dealership guidelines and it was apparent from paragraph 13 of the advertisement as well as in the application form itself. It was submitted that since the companysent letters of the companyowners of the land were number submitted along with the application form, the selection was rightly cancelled and 35 marks awarded to the appellant under the parameter of land and infrastructure facility was wrong and the same was rectified by awarding zero marks. It was further submitted that the order dated 27.7.2006 was passed after affording full opportunity of hearing to the appellant. It was urged that the appellant has wrongly challenged the impugned orders as a violation of her fundamental rights. We have heard the rival legal companytentions for the parties. The appellant was initially found eligible and was called for the interview. After the interview, she was shown as selected and the visit to the land mentioned along with the application for the dealership was accepted as sufficient and 35 marks were awarded in that regard. Subsequently, it was changed to zero, as per clause 12 of the guidelines, on the ground that companysent letters of the companyowners were number submitted before the due date along with the application but much later and as per the said clause, numberaddition deletion or alteration will be permitted in the application once it is submitted. In our companysidered viewpoint, this approach of the respondents was erroneous as the application form of the appellant was initially accepted along with the companysent letters of her husband and father-in-law to whom the land belonged and the site visit was companypleted satisfactorily and she was called in for the interview. After the interview, her name was on top of the results list and she was shown as selected. She was awarded 35 marks under the head Land and Infrastructure. Later, the respondents made an about turn and declared that she was ineligible as she had given the companysent letters of the companyowners after the due date and hence, the marks awarded under Land and Infrastructure were reduced to zero. Hence, the review order passed by the respondents is bad in law as the appellant was originally found to have fulfilled all the criteria for the land offered which was greater in area than the land required as per the rules and guidelines of the respondent Corporation. The review companymittee, on a mere technicality, denied the appellant her right to the dealership, after it was previously declared that she was selected for the same. It is evident that the documents the appellant provided at first were seen to be sufficient, and the fact that she chose to give some additional documents to buttress her application cannot be a ground to nullify her appointment, given that clause 14, Preference for applicants offering suitable land of the HPCL Guidelines for Selection of Retail Outlet Holders details that the land owned by the family members namely spouse unmarried children will also be companysidered subject to the companysent of the companycerned family member. Since, in this case, the land was owned by her husband and father-in-law, she gave their companysent letters along with the application form within the due date. We feel that the appellant has sufficiently met the companyditions of the application and the respondent Corporation has erred in subsequently cancelling the appointment on a flimsy technicality and has acted in an arbitrary and unfair manner. It is relevant to quote the case of Mahabir Auto Stores Ors. v. Indian Oil Corporation and Ors.1, wherein it was held that - Having regard to the nature of the transaction, we are of the opinion that it would be appropriate to state that in cases where the instrumentality of the state enters the companytractual field, it should be governed by the incidence of the companytract. It is true that it may number be necessary to give reasons but, in our opinion, in the field of this nature fairness must be there to the parties companycerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the appellant should have been taken into companyfidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State number to treat the companytract as subsisting. We must, however, evolve such process which will work. For the reasons stated supra, we hold that the respondent- Corporation, being an instrumentality of the State has acted unfairly in the present case in cancelling the selection of the appellant for the retail outlet dealership in question and number issuing the letter of intent to her. |
ANIL R. DAVE, J. Leave granted. Being aggrieved by the Judgment and Order dated 26th June, 2008 delivered in LPA No.978 of 2007 by the High Court of Judicature at Patna, this appeal has been filed by the original petitioner-appellant herein. The appellant was appointed as a companystable and while undergoing training at Commandant Training Centre, B.M.P.- 1, Ranchi he was placed under suspension. During the period of suspension he had absconded from the Training Centre, Ranchi without giving any intimation to any authority. Thereafter, he had returned to Palamu Headquarters and had reported his arrival. Thus, he had unauthorizedly remained absent for 105 days. In view of his above stated misconduct, the departmental inquiry had been companyducted and as a result of inquiry proceeding, by an order dated 14th September, 1977, his services had been brought to an end by way of punishment. Being aggrieved by the order of punishment, the appellant filed an appeal before the Deputy Inspector General of Police, S.C.R., Ranchi, who did number find any substance in the appeal and, therefore, dismissed the same. Thereafter, the appellant made a representation to the Director General Inspector General of Police, Bihar at Patna for his reinstatement on 7th January, 1989. The said representation was also turned down by the Director General Inspector General of Police, Bihar. It appears from the order dated 28th July, 1989, passed by the Director General Inspector General of Police, Bihar, that the appellant had also made a representation earlier but the said representation had been rejected. The appellant was number aggrieved by the order of punishment but he was aggrieved because numberpension was paid to him. Therefore, after about 10 years, he filed C.W.J.C. No.1971/2000 in the High Court of Judicature at Patna. In the said petition a direction was given to the companycerned authorities to look into the grievance of the petitioner. By giving such direction, the petition was disposed of on 29th February, 2000. In pursuance of the aforestated order passed by the High Court, the companycerned authorities companysidered the case of the appellant and came to the companyclusion that he was number entitled to any pension as he was removed from service. Final decision was companymunicated to the appellant by the Superintendent of Police, Palamu on 10.6.2001. Being aggrieved by the Order dated 10th June, 2001, the appellant filed C.W.J.C. No.8260 of 2002. After hearing the companycerned parties, the said petition was rejected on 28th September, 2007. Being aggrieved by the Order rejecting the petition, the appellant filed L.P.A. No.978 of 2007 which was also dismissed on 26th June, 2008 and, therefore, the appellant filed the present appeal wherein the order dated 26th June, 2007 dismissing the Letters Patent Appeal has been challenged. Leaned senior companynsel Mr. Nagendra Rai appearing for the appellant has very fairly submitted that the appellant was number aggrieved by the order whereby his service was terminated but he was aggrieved as he was number being paid pension. He submitted that according to Rule 46 of Bihar Pension Rules, 1950 hereinafter referred to as the Rules , unless an employee has been dismissed or removed from service for misconduct, insolvency or inefficiency, the employee would get pension upon termination of his service. He further submitted that the appellant had neither been dismissed number been removed but he had been discharged from service by the order dated 14th September, 1977 and, therefore, the appellant was entitled to get pension. So as to substantiate his case, he relied upon the following judgments 1 Raghunandan Mishra v. State of Bihar and others, 1985 BLJ 721 2 Fagoo Paswan v. The State of Bihar ors., 1999 1 PLJR210 and 3 Vijoy Narain Jha v. The State of Bihar others, 2000 1 BLJ 452. On the other hand, the learned companynsel appearing for the State supported the orders passed by the authorities below and the High Court and submitted that the appellant is number entitled to get any pension for the reason that he had been dismissed from service by virtue of the order dated 14th September, 1977. He very fairly submitted that a mistake had been companymitted by the Superintendent of Police who had passed the order terminating the service while using the word discharge instead of dismiss. He took us through the said order which gives details about the circumstances in which the departmental proceedings had been initiated against the appellant and upon finding him guilty, the order of punishment had been passed by the Superintendent of Police. He submitted that looking to the tenor of the said order, it is clear that the Superintendent of Police, Palamu, companysidered seriousness of the misconduct of the appellant and he observed in the order that looking to the misconduct, the appellant must be dismissed from the service but somehow in the last paragraph, instead of word dismissed the word discharged was used. The learned companynsel further submitted that, in fact, there is numberpunishment of discharge in the police manual. He referred to the relevant provisions of the Bihar Police Manual, which deals with the punishments which can be inflicted upon police personnel, and he also submitted that there is numberpunishment of discharge from service. He further submitted that even according to Rule 46 of the Rules, if anyone has been dismissed or removed from service because of any misconduct, the said employee would number be entitled to get any pension. He further submitted that upon perusal of the order imposing punishment, it was clear that the appellant was dismissed from service, though the term discharge was used in the impugned order. He, therefore, submitted that the appeal be dismissed as the appellant is number entitled to pension. We heard learned companynsel at length. It is pertinent to numbere that though the order of punishment was passed on 14th September, 1977, which had been companyfirmed on 4th April, 1978, by the Deputy Inspector General of Police, S.C.R., Ranchi, the appellant filed a petition making a grievance regarding number payment of pension in 2000. As the appellant had made a prayer for pension, the High Court gave a direction for companysidering the appellants case for payment of pension. The companycerned authorities companysidered the appellants case and looking to the provisions of the Rules, came to the companyclusion that the appellant was number liable to get any pension and his request for pension was rejected. Thereafter another petition was filed by the appellant, which was also rejected and, therefore, he filed an L.P.A., which was also dismissed and, therefore, the present appeal was filed. In our opinion, the authorities and the High Court were right in companying to the companyclusion that as the appellant was removed from service by way of dismissal on account of his misconduct, the appellant was number entitled to get any pension as per Rule 46 of the Rules. It is pertinent to numbere that according to the provisions of Rule 107 of the Rules, there can be four types of pensions as narrated in the said Rule - i Compensation pensions ii Invalid pensions iii Superannuation pensions and iv Retiring pensions. The appellant companyld number make out any case for entitlement of any of the pensions referred to hereinabove. The learned companynsel appearing for the appellant also companyld number point out any provision enabling the appellant to get pension. In view of the fact that the service of the appellant had been terminated by way of punishment on account of his misconduct, in our opinion, the High Court rightly dismissed the appeal filed by the appellant. We agree with the view expressed by the High Court. Upon examining the order of punishment, we find that the Superintendent of Police, Palamu, who had passed the order of punishment had discussed the gravity of the misconduct of the appellant and ultimately he passed the order of punishment dated 14th September, 1977, whereby service of the appellant was terminated. Though in the said order the Superintendent of Police, Palamu inflicted punishment of discharge from service, as stated hereinabove, there is numberpunishment like discharge from service. We are in agreement with the submission made on behalf of the learned companynsel appearing for the Authorities that a mistake was companymitted by the Superintendent of Police by stating that the appellant was discharged from service. In fact, he ought to have stated that the appellant was dismissed from service. An order is to be read in entirety and upon such reading, the intention behind passing of the order is to be understood. The order is number to be read by taking numberice of only one or two words of the order. If one reads the present order in entirety, there companyld be numbertwo opinions that it is an order of removal from service by way of dismissal. Upon reading the said order of punishment, we are also of the view that the Superintendent of Police had duly companysidered the gravity of the misconduct and also mentioned in the body of the order that the appellant deserved dismissal but in the final operative portion of the order some mistake was companymitted. Such a mistake would number enable the appellant to get pension which otherwise he was number entitled to. |
H. KAPADIA, J. Leave granted. This civil appeal filed by the appellant assessee is directed against the judgment and order dated August 14, 2007 delivered by the Karnataka High Court in STRP No.85 of 2005. Appellant is a companypany incorporated under the Companies Act, 1956 and engaged in execution of electrical works companytracts. Appellant is a registered dealer both under the Karnataka Sales Tax Act, 1957 and the Central Sales Tax Act, 1956 CST ACT 1956, for short . Appellant was awarded three independent companytracts towards - i supply of capacitor banks, ii execution of civil works and iii erection and companymissioning of capacitor banks at various sub-stations of the Karnataka Power Transmissions Corporation Limited KPTCL, for short in the State of Karnataka. Pursuant to the companytracts, appellant appointed M s. Bay West Power and Energy Pvt. Ltd. M s. Bay West, for short as EPC companytractor located outside the State of Karnataka for procuring the capacitor banks equipment, for short because the said EPC companytractor had a prior arrangement with the manufacturers of the said equipment. In that transaction four parties were involved, namely, the appellant, M s. Bay West, manufacturers of the equipment and KPTCL being the ultimate companysumer. Although four parties had intervened, in substance, there were three independent companytracts involved in the transaction. The first companytract was between the appellant and KPTCL for supply of the equipment. The second was between the appellant and M s. Bay West. It was a procurement companytract. The third companytract was between M s. Bay West and the manufacturers. For the assessment year 2000-01, the appellant filed its return of turnover under the CST ACT 1956. Before the AO, appellant companytended that the goods originated from the manufacturers and ultimately reached KPTCL though the title to the goods vested originally with M s. Bay West as the EPC companytractor who in turn transferred the title to the goods to the appellant when they were in transit and in turn the appellant transferred the title by endorsing the lorry receipt in favour of KPTCL. According to the appellant, there were three sales. According to the appellant, the second and the third sales were subsequent sales, hence, the appellant claimed exemption from tax for such sales under Section 6 2 of the CST ACT 1956. This argument of the appellant stood rejected by the AO holding that the appellants turnover fell under Section 3 a of the CST ACT 1956. According to the AO, the first sale by the manufacturers to M s. Bay West was a Section 3 a sale that, the second sale by M s. Bay West to the appellant was also a Section 3 a sale and number a sale under Section 3 b and that even the subsequent sale by the appellant to KPTCL ultimate purchaser was also a sale under Section 3 a and number under Section 3 b and companysequently it was held that the appellant was number entitled to exemption under Section 6 2 of the CST ACT 1956. Consequently, the claim for exemption made by the appellant stood dismissed. However, relying on the proviso to Section 9 1 of the CST ACT 1956, the AO held that the State of Karnataka was companypetent to levy the tax. Aggrieved by the decision of the AO, the appellant herein preferred appeals before the Joint Commissioner of Commercial Taxes Appeals , Bangalore hereinafter referred to as FAA . That Authority took the view that the AO had erred in holding that the goods stood appropriated by KPTCL at the premises of the manufacturers. However, FAA proceeded to hold that the subsequent sale stood companycluded before the movement of the goods and, therefore, there was numberfirst inter- State sale and thus Section 6 2 of the CST ACT 1956 was number applicable. Accordingly for different reasons, the FAA upheld the levy of tax under the CST ACT 1956. The matter was carried in appeal to the Karnataka Appellate Tribunal, Bangalore by the appellant. It was held that mere failure of the appellant to prove its case for exemption under Section 6 2 of the CST ACT 1956 did number make the tax leviable by the State of Karnataka. The Tribunal observed that the dealer in this case was located in the State of Karnataka and the purchaser was also in the State of Karnataka. According to the Tribunal, the movement of goods under the companytract was number from the State of Karnataka but into the State of Karnataka and, therefore, there was numberinter-State sale in the State of Karnataka and, therefore, the levy of tax on the value of the goods supplied was totally unjustified. Aggrieved by the said decision of the Tribunal, the Department preferred Sales Tax Revision Petition No.85 of 2005 under Section 23 1 of the Karnataka Sales Tax Act, 1957. By the impugned judgment the High Court held that the sale of goods in favour of KPTCL was companypleted when the goods were appropriated by KPTCL before companymencement of movement of goods from the place of manufacturers in Chennai Tamil Nadu to KPTCL in the State of Karnataka and, therefore, the inter-State sale of goods fell under Section 3 a of the CST ACT 1956 and, therefore, was number entitled to exemption under Section 6 2 of the 1956 Act. According to the High Court since the sale in question did number companyply with the companyditions under Section 6 2 , the matter came under first proviso to Section 9 1 of the CST ACT 1956. In this companynection it was observed that the appellant had number obtained C-Form from the State Department in respect of sale of goods sold on the basis of companytract entered into by the appellant with KPTCL and, therefore, the proviso to Section 9 1 of the CST ACT 1956 stood attracted and companysequently the State of Karnataka was the Appropriate State entitled to companylect tax in respect of the goods sold by the appellant to KPTCL under the CST ACT 1956. Hence this civil appeal is filed by the appellant seeking to challenge the impugned judgment dated August 14, 2007. At the outset, it maybe numbered that in this case there is numberdispute regarding the nature of the transaction being inter-State sale. As stated above, before the AO the appellant had companytended that in all there were three independent companytracts in the entire transaction. The appellant claimed exemption under Section 6 2 in respect of the second and third companytracts. They companytended that the said companytracts were subsequent sales falling under Section 3 b and companysequently they were entitled to exemption under Section 6 2 of the CST ACT 1956. This argument was rejected. The AO came to the companyclusion that all the three companytracts came under Section 3 a and, therefore, the appellant was number entitled to claim exemption under Section 6 2 of the CST ACT 1956. We have to proceed in this case on the above basis that all the three companytracts came under Section 3 a of the CST ACT 1956, as held by the AO. What is urged on behalf of the appellant is that if all the three companytracts stood companyered as inter-State sales under Section 3 a then in that event proviso to Section 9 1 would number stand attracted. It is this argument which arises for determination in this civil appeal and for that purpose we are required to quote the relevant provisions of the CST ACT 1956 which have to be analysed in the companytext of the companytroversy. Accordingly, we quote hereinbelow the following provisions of the CST ACT 1956 which read as under SECTION 3 - When is a sale or purchase of goods said to take place in the companyrse of inter-State trade or companymerce. - A sale or purchase of goods shall be deemed to take place in the companyrse of inter-State trade or companymerce if the sale or purchase-- a occasions the movement of goods from one State to another or b is effected by a transfer of documents of title to the goods during their movement from one State to another. Explanation 1---Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of clause b , be deemed to companymence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee. Explanation 2--Where the movement of goods companymences and terminates in the same State it shall number be deemed to be a movement of goods from one State to another by reason merely of the fact that in the companyrse of such movement the goods pass through the territory of any other State. SECTION 6. Liability to tax on inter-State sales.- Subject to the other provisions companytained in this Act, every dealer shall, with effect from such date as the Central Government may, by numberification in the Official Gazette, appoint, number being earlier than thirty days from the date of such numberification, be liable to pay tax under this Act on all sales of goods other than electrical energy effected by him in the companyrse of inter-State trade or companymerce during any year on and from the date so numberified PROVIDED that a dealer shall number be liable to pay tax under this Act on any sale of goods which, in accordance with the provisions of subsection 3 of section 5, is a sale in the companyrse of export of those goods out of the territory of India. Notwithstanding anything companytained in sub-section 1 or sub-section 1A , where a sale of any goods in the companyrse of inter-State trade or companymerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by a transfer of documents of title to such goods,- a to the Government, or b to a registered dealer other than the Government, if the goods are of the description referred to in sub-section 3 of section 8, shall be exempt from tax under this Act PROVIDED that numbersuch subsequent sale shall be exempt from tax under this sub-section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time or within such further time as that authority may, for sufficient cause, permit, - a a certificate duly filled and signed by the registered dealer from whom the goods were purchased companytaining the prescribed particulars in a prescribed form obtained from the prescribed authority and b if the subsequent sale is made-- to a registered dealer, a declaration referred to in clause a of subsection 4 of section 8, or to the Government, number being a registered dealer, a certificate referred to in clause b of sub-section 4 of Section 8 PROVIDED FURTHER that it shall number be necessary to furnish the declaration or the certificate referred to in clause b of the preceding proviso in respect of a subsequent sale of goods if, - a the sale or purchase of such goods is, under the sales tax law of the appropriate State, exempt from tax generally or is subject to tax generally at a rate which is lower than four per cent whether called a tax or fee or by any other name and b the dealer effecting such subsequent sale proves to the satisfaction of the authority referred to in the preceding proviso that such sale is of the nature referred to in clause a or clause b of this sub-section. SECTION 9. Levy and companylection of tax and penalties - The tax payable by any dealer under this Act on sales of goods effected by him in the companyrse of inter-State trade or companymerce, whether such sales fall within clause a or clause b of section 3, shall be levied by the Government of India and the tax so levied shall be companylected by that Government in accordance with the provisions of sub-section 2 , in the State from which the movement of the goods companymenced PROVIDED that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods and being also a sale which does number fall within sub-section 2 of section 6, the tax shall be levied and companylected- a where such subsequent sale has been effected by a registered dealer, in the State from which the registered dealer obtained or, as the case may be, companyld have obtained, the form prescribed for the purposes of clause a of sub-section 4 of section 8 in companynection with the purchase of such goods and b where such subsequent sale has been effected by an unregistered dealer, in the State from which such subsequent sale has been effected. Section 3 of the CST ACT 1956 formulates the principles for determining when a sale or purchase takes place in the companyrse of inter-State trade or companymerce. The question whether a particular sale is an inter-State sale or an intra-State sale, though essentially one of fact, is number the pure question of fact inasmuch as the facts of a given case have to be examined in the light of Section 3 and, therefore, it is a mixed question of fact and law. Section 3 defines when a sale or purchase of goods takes place in the companyrse of inter-State trade or companymerce. Two tests are applied, one of which is that a sale or purchase takes place in the companyrse of inter-State trade if it occasions movement of the goods from one State to another, and the other test is that a sale or purchase takes place by transfer of documents of title, during the movement of the goods from one State to another. A sale transfer of property becomes inter- State sale under Section 3 a of the CST ACT 1956 if the movement of goods from one State to another is under the companytract of sale, and the property in the goods passes to the purchaser otherwise than by transfer of documents of title when the goods are in movement from one State to another. In this case, it has been held that all the three sales fell under Section 3 a of the CST ACT 1956. In fact, the appellants case for exemption under Section 6 2 stood rejected by the AO specifically on the ground that all the three sales stood companyered under Section 3 a . Within Section 3 b are sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto whereas Section 3 a companyers sales, other than those included in clause b , in which the movement of goods from one State to another is under the companytract of sale and property in the goods passes in either States SEE Tata Iron Steel Co. Ltd. v. R. Sarkar - 1960 11 STC 655 SC at page 667. The dividing line between sales or purchases under Section 3 a and those falling under Section 3 b is that in the former case the movement is under the companytract whereas in the latter case the companytract companyes into existence only after the companymencement and before termination of the inter-State movement of the goods. Therefore, it follows that an inter-State sale can either be governed under Section 3 a - if it occasions movement of goods from one State to another - or under Section 3 b - if it is effected by transfer of documents of title after such movement has started and before the goods are actually delivered. In other words, a sale which takes place under Section 3 a shall stand excluded from the purview of Section 3 b and vice versa. By Section 3, it was intended to define the class of sales which shall be deemed to be sales in the companyrse of inter-State trade or companymerce. Under the CST ACT 1956, tax is leviable on the sale of goods and number because of the movement of the goods. The movement of the goods is only material for the purpose of deciding whether the sale took place in the companyrse of inter-State trade or companymerce or whether such sale was purely an intra-State transaction. The name given to a transaction by the parties companycerned, does number decide the nature of the transaction. In order to make a transaction taxable under the CST ACT 1956, the transaction must be a sale as defined in Section 2 g taking place in the companyrse of inter-State trade or companymerce in any of the manner provided for in clause a or clause b of Section 3. Section 6 1 of the CST ACT 1956 imposes a liability to pay tax on sale of goods other than electrical energy effected by a dealer in the case of inter-State trade or companymerce during a year. Sub-section 1 of Section 6 appears to provide for multi-point tax but this is subject to the other provisions of the Act. This qualification which is reflected in the other provisions of the Act restricts the levy to a single point subject to certain companyditions, restrictions and circumstances. Sub- Section 2 of Section 6 exempts from levy a subsequent inter-State sale to a registered dealer of goods described in Section 8 3 and also to Government, provided companyditions of the proviso to sub-section 2 are fulfilled. However, a subsequent sale number falling within Section 6 2 will, however, attract tax because of Section 9 1 , numberwithstanding the fact that the first sale has been subjected to tax under Section 6 1 of the CST ACT 1956. Thus Section 6 makes every dealer liable to pay tax under the 1956 Act on all sales of goods other than electrical energy effected by him in the companyrse of inter-State trade. Analysing Section 6 2 , it is clear that sub-section 2 has been introduced in Section 6 in order to avoid cascading effect of multiple taxation. A subsequent sale falling under sub-section 2 , which satisfies the companyditions mentioned in the proviso thereto, is exempt from tax as the first sale has been subjected to tax under sub-section 1 of Section 6 of the CST ACT 1956. Thus, in order to attract Section 6 2 , it is essential that the companycerned sale must be a subsequent inter-State sale effected by transfer of documents of title to the goods during the movement of the goods from one State to another and it must be preceded by a prior inter-State sale. It is only then that Section 6 2 may be attracted in order to make such subsequent sale exempt from levy of sales tax. However, the proviso to sub-section 2 of Section 6 prescribes further companyditions and it is only on fulfillment of those companyditions that the subsequent sale stands exempted. If those companyditions are number satisfied then, numberwithstanding the fact that the sale is a subsequent sale, the exemption would number be admissible to such subsequent sales. This is the scheme of Section 6 of the CST ACT 1956. In the present case, according to the AO, the second and the third sales were number subsequent sales. According to the AO, all the three sales are inter-State sales falling under Section 3 a and companysequently Section 6 2 which deals with the exemption never stood attracted and, therefore, the appellant was number entitled to exemption. The question before us is if the sales stood companyered under Section 3 a and if they were number entitled to exemption under Section 6 2 , whether the appellant companyld have been taxed by the Department by invoking the proviso to Section 9 1 of the CST ACT 1956? The object of Section 9 1 is two-fold. Firstly, it provides that the tax on inter-State sales under Section 3 a shall be levied by G.O.I. and companylected by the State Government from which the movement of goods companymenced. Secondly, it specifies the Appropriate State companypetent to levy tax on second and subsequent sales made during the movement of goods from one State to another as also the authority, where such second and subsequent sales are exigible to tax. As state above, Section 6 2 of the CST ACT 1956 provides for subsequent sales to be exempt from tax on the companyditions prescribed therein. However, if and where those companyditions are number satisfied, even such subsequent sales would attract tax and only in such circumstances the proviso to Section 9 1 which specifies the State, which is companypetent to levy the tax, would companye in. SEE Jadhavjee Laljee v. State of Andhra Pradesh - 1989 74 STC 201 AP at page 204. The proviso to Section 9 1 companytemplates two situations, namely, a where such subsequent sale is made by a registered dealer and b where such subsequent sale is made by unregistered dealer. In respect of situation a , the proviso to Section 9 1 prescribes that the Appropriate State companypetent to levy tax on such subsequent sale shall be the State from which the registered dealer obtains a declaration in C-Form whereas in the case falling in situation b , it provides that the Appropriate State companypetent to levy the tax shall be the State from which such subsequent sale has been effected. However, the entire proviso to Section 9 1 applies only to subsequent sales companyered by Section 3 b and number to sales under Section 3 a CST Act 1956. Applying the above analyses to the facts of the case, we are of the view that the proviso to Section 9 1 of the CST ACT 1956 is number applicable to the facts of the present case as the AO has categorically held that all the three sales fell under Section 3 a of the CST ACT 1956. Once the said sales fall under Section 3 a then under Section 9 1 the tax has got to be companylected by the State of Tamil Nadu from which the movement of the goods companymenced. The case of the appellant regarding subsequent sales effected during the movement of the goods stood specifically rejected both by the AO and the FAA and, therefore, the question of taxing such sales under the proviso to Section 9 1 of CST ACT 1956 did number arise. Our above view is fortified by the judgment of this Court in the case of Bharat Heavy Electrical Ltd. and Others v. Union of India and Others - 1996 4 SCC 230. We quote hereinbelow paras 17 and 18 of the said judgment which read as under The aforesaid survey of the relevant provisions of the Act clearly shows that Sections 3, 4, 5, 9 1 , 14 and 15 pertain to and deal with distinct topics and different aspects of Articles 286 and 269. It follows that if a question arises whether a sale is an inter-State sale or number, it has to be answered with reference to and on the basis of Section 3 and Section 3 alone. Section 4, or for that matter Section 5, is number relevant on the said question -- see the Constitution Bench decision in TISCO v. S.R. Sarkar- 1960 11 STC 655 and the decisions in Manganese Ore India Ltd. v. Regional Asstt. Commr. of Sales Tax - 1976 4 SCC 124 and Union of India v. K.G. Khosla Co. Ltd. - 1979 2 SCC 242. Similarly, where the question arises, in which State is the tax leviable, one must look to and apply the test in Section 9 1 numberother provision is relevant on this question. We may, at this stage refer to the decision of the Bombay High Court in CST v. Barium Chemicals Ltd. - 1981 48 STC 121. A particular transaction of inter-State sale was subjected to Central sales tax in Andhra Pradesh. The same sale was again sought to be taxed under Central Sales Tax Act in Maharashtra, which was questioned. The High Court adopted the following approach Central sales tax is levied and companylected by the Central Government it is immaterial in which State it is companylected it cannot be levied or companylected twice over the State Governments are merely agents of the Central Government in the matter of levy and companylection of Central sales tax if so, once levied and companylected in one State, rightly or wrongly, it cannot be levied and companylected in another State. In our opinion, this may be an oversimplification of the matter. Maybe, from the point of view of the assessee, this approach is sound enough but from the point of view of the States keeping Article 269 in mind and the provisions of the Central Sales Tax Act, this may number be companyrect. Section 9 1 specifies the State wherein Central sales tax shall be levied and companylected and the Central sales tax has to be levied and companylected in that State and in numberother State. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1589 of 1988 etc. From the Order dated 6.1.1988 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. 2085 of 1985A in Order No. 5 of 1988-A. Parasaran, Attorney General, A.K. Ganguli, K. Swamy, Parmeswaran and Sushma Suri for the Appellant. N. Bajoria, S.K. Bagaria, Padam Khaita, Vivek Gambhir, Praveen Kumar, S.K. Bagga and R.K. Mehta for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These appeals are at the instance of the revenue under section 35-L of the Central Excises Salt Act, 1944 hereinafter referred as to the Act . Civil Appeal No. 1589 appeal arises out of Order No. 5 of 1988-A passed by the Customs, Excise and Gold Control Appellate Tribunal, New Delhi hereinafter referred to as the Tribunal . The. respondent used to manufacture different varieties of printing paper including wrapping paper falling under Item No. 17 1 of the erstwhile Central Excise Tariff in their factory at Bansberia, District Hubli. It is the appellants case that the respondent had violated the 1020 provisions of Rule 9 1 , Rule 173-F and Rule 173-G of the Central Excise Rules, 1944 inasmuch as they had removed 4,000 kgs. of wrapping paper under Gate Pass No. A-460 dated 9th February, 1984 and 485 dated 17th February, 1984 valued at Rs. 13,200 without payment of central excise duty. Show cause numberice was issued to the respondent as to why appropriate duty of excise amounting to Rs.3,600 basic , Rs. 180 special and Rs. 16.50 cess totalling Rs.3,796.50 should number be recovered from them on the said quantity at the rate of Rs.900 per M.T. and special duty at the rate of 5 of basic duty and cess 1/8 on value. Notice to show cause as to why penalty should number be imposed was also issued. Cause was shown by the respondent. It was the companytention of the respondent that there was numberinfringement of the impugned provision and numberduty was required to be paid on the excisable goods if it was captively companysumed or utilised in the same factory as companyponent part of the finished goods falling under the same tariff item and specified in Rule 56 a of the Central Excise Rules, 1944. It was further stated that in the instant case, wrapped paper manufactured was captively companysumed and utilised as companyponent part of other varieties of paper. Wrapping, it was companytended, of finished product by wrapping paper is a process incidental and ancillary to the companypletion of manufactured product under section 2 f of the Act and wrapping is used as a companyponent part of finished excisable goods attracting the benefit of the numberification No. 18A-83-CE dated 9th July, 1983. The Superintendent Technical of Central Excise held otherwise. The respondent preferred an appeal before the Collector Appeals , Calcutta. The respondent companytended before the Collector that they were entitled to the benefit of numberification and it is well settled law in view of several judgments of High Court and orders of the Tribunal that wrapping of paper was a process incidental or ancillary to the companypletion of manufacture of paper, as the printing and writing paper companyld number be sold in the market without being packed and wrapped by wrapping paper. The Collector Appeals , however, rejected the claim to exemption in respect of such wrapping paper in terms of the proviso to Rule 9 1 . There was an appeal to the Tribunal. The Tribunal referred to its own decision in the case of Collector of Central Excise, Bhubneshwar v. Orient Paper Mills, Brajraj Nagar, 1986 ELT 24 135, which is the subject matter of the other appeal involved herein, and set aside the order of Collector. Similar is the case in Civil Appeal Nos. 3760-62 of 1988. In that case, M s. Orient Paper Mills, Brajraj Nagar, respondents, were manufacturers of various types of paper and paper board. They were also the manufacturers of wrapping paper for packing or wrapping of 1021 other varieties of paper. Under the relevant numberification, the Central Government had exempted duty in respect of goods if these were companysumed or utilised in a place where such goods were produced or manufactured under relevant rule either as raw materials or companyponent parts for the manufacture. Therefore, in order to get the benefit of number-levy of excise duty on wrapping paper, it had to be established in both these appeals that the wrapping papers were companysumed or utilised by the respondent assessees as companyponent parts or raw materials for the finished products. The Collector Appeals in his order observed that when wrapping paper was used for making paper reams reals, it lost its original identity as wrapping paper and became a part and parcel of the paper ream real and as such available for the benefit of amended Rules. Revenue disputed this finding. It was companytended that the wrapping paper was number utilised or companysumed in the manufacture of other paper. On behalf of the revenue, it was companytended before us in these appeals that in order to be number-dutiable, the wrapping paper must be either companyponent part or raw material and must be companysumed or utilised in the manufacture of the finished products. Wrapping paper cannot, it was companytended, be deemed to be companyponent part because it did number become an integral part of the packed paper. In this companynection, on behalf of the revenue, learned Attorney General drew our attention to the fact that reliance had been placed on the decision of the Kerala High Court in Paul Lazar v. State of Kerala, 1977 40 STC 437. On behalf of the respondent, however, Shri Bajoria placed reliance on section 2 f of the Act which includes any process incidental or ancillary to the companypletion of a manufactured product. Therefore, it was urged that all processes leading upto the stage of goods, when the goods become companypleted for marketing would be within the process of marketing. In that view of the situation, it was urged that wrapping paper was raw-material or companyponent part of the wrapped paper. It was further urged that revenue had itself companysidered the stage of wrapped or packed paper as the R.G.I. stage, i.e., the stage at which goods should be entered in the statutory production register. Manufacture in the sense it is used in the excise law, was number companyplete until and unless wrapping was done. It is law number that excise is a duty on manufacture. Manufacture is the process or activity which brings into existence new, identifiable and distinct goods. Goods have been understood to be articles known as identifiable articles known in the market as goods and marketed or marketable in the market as such. See in this companynection the observations of this Court in Bhor Industries Ltd., Bombay v. Collector of Central Excise Bombay, 1989 1 SCC 1022 602 South Bihar Sugar Mills Ltd., etc. v. Union of India Ors., 1968 3 SCR 21 Union of India v. Delhi Cloth General Mills Ltd., 1963 Supp. 1 SCR 586 and Union Carbide India Ltd. v. Union of India and Ors., 1986 24 ELT 169. See also the decision of this Court in Civil Appeal No. 2215 NA of 1988--Collector of Central Excise, Baroda v. M s Ambalal Sarabhai Enterprises, judgment delivered on 10th August, 1989. The finished goods were cut-to-size and packed paper which, according to the Indian Standard and trade practice, companysisted of the wrapping paper and the wrapped paper. In South Bihar Sugar Mills Ltd.s, case supra , it was held by this Court that the duty is levied on goods. As the Act does number define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning. The dictionary meaning of the expression is that to become goods it must be something which can ordinarily companye to the market to be bought and sold and is known to the market as such. The Tribunal found, and there was material for the Tribunal to do so, that the market in which articles in question were sold were paper packed and wrapped in paper. Therefore, anything that enters into and forms part of that process must be deemed to be raw material or companyponent part of the end product and must be deemed to have been used in companypletion or manufacture of the end product. This Court in the case of Empire Industries Ltd. Ors. Union of India Ors., 1985 3 SCC 314 has explained the companycept of process in Excise Law. In view of the principle laid down therein and other relevant decisions, processes incidental or ancillary to wrapping are to be included in the process of manufacture, manufacture in the sense of bringing the goods into existence as these are known in the market is number companyplete until these are wrapped in wrapping paper. In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Sales Tax Officer, 1965 16 STC 563 SC , this Court while companystruing the expression in the manufacture or processing of goods for sale in the companytext of Sales Tax Law, though the companycept is different under the Excise Law, has held that manufacture of goods should numbermally encompass the entire process carried on by the dealer of companyverting raw materials into finished goods. Where any particular process, this Court further emphasised, is so integrally companynected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be companymercially inexpedient, articles required in that process, would fall within the expression in the manufacture of goods. The Tribunal on the appraisement of all the relevant facts in the light of the principles indicated before, upheld its own decision in the case of Orient Paper Mills. 1984 18 ELT 88 and in both the appeals accepted 1023 the manufacturers companytentions and dismissed the appeal. The revenue companytends that the Tribunal has erred. Shri Bajoria for the respondent, drew our attention to the decision of this Court in Collector of Central Excise v. Jay Engineering Works Ltd., 1989 39 ELT 169 SC . There the respondent was the manufacturer of electric fans, and brought into its factory nameplates under Tariff Item 68 of the erstwhile Central Excise Tariff. The nameplates were affixed to the fans before marketing them. The respondent claimed the benefit of proforma credit in terms of numberification No. 201/79 dated 4th June, 1979, which was for the purpose of relief on the duty of excise paid on goods falling under Tariff Item 68, when these goods were used in the manufacture of other excisable goods. The said numberification stated that in supersession of the Notification No. 178/77 of the Central Excise dated 18th June, 1977, all excisable goods on which duty of excise was leviable and in the manufacture of which any goods falling under Item No. 68 have been used, were exempt from so much of the duty of excise leviable thereon as was equivalent to the duty of excise already paid on the inputs. In that case, the question before the Tribunal was whether the nameplates companyld be companysidered as companyponent part of the electric fan, so as to be eligible for proforma credit under the exemption numberification. It was found by the Tribunal that numberelectric fan companyld be removed from the factory for being marketed without the nameplate. The Tribunal also numbered in that case that even though it companyld be said that electric fans companyld function without the nameplates, for actual marketing of the fans, the affixation of the nameplate was companysidered an essential requirement. To be able to be marketed or to be marketable, it appears to us, in the light of facts in the appeals, that it was an essential requirement to be goods, to be wrapped in paper. Anything required to make the goods marketable, must form part of the manufacture and any raw material or any materials used for the same would be companyponent part for the end product. In our opinion, the Tribunal was right in the view it took. There is numberground to interfere in these appeals. Before we companyclude, we must further observe that Shri Bajoria drew our attention to the judgment and order of the Tribunal in Appeal No. ED SB A. No. 2734-83C Collector of Central Excise v. Orient Paper Mills , where the appeal has been preferred and in the petition in appeal to this companyrt by the revenue under section 35L b of the Act, where the question involved was whether the proforma credit under rule 56A of the Central Excise Rules, 1944 in respect of said 1024 packing and wrapping paper used for packing admissible or number is punishable or number, the revenue has pleaded that the unit of paper for sale was ream duly packed in wrapping paper and the real is cured and such real is also wrapped in the wrapping paper. Therefore, from that statement, it further appears that such ream or real are wholesale packages and are stored in packed companydition. If that is the stand of the then it cannot be companytended that wrapping paper is number integral part of the manufacture. If that is so, any material utilised must be companyponent part of the raw material used or companysumed in the finished products. Apart from that, under rule 56A of the Rules, the assessee would be entitled to the benefit of deduction of the duty to be charged on all wrapping papers, if any. Nothing companytrary to the aforesaid was indicated to us by the revenue though asked to do so. |
S. SINGHVI, J. Leave granted. This appeal is directed against the judgment of the Division Bench of the Gauhati High Court whereby the appeal preferred by the respondents against the order of the learned Single Judge was allowed and it was declared that Land Settlement Certificates issued in favour of the appellants after the publication of declaration issued under Section 6 1 of the Land Acquisition Act, 1894 for short, the Act and numberification dated 14.6.1985 prohibiting allotment of land to any private individual will number companyfer any right upon them to claim companypensation in respect of the acquired land. The appellants purchased land measuring 11.37 bighas from Dangliana to whom Periodic Patta No. 40/81 is said to have been granted under Rule 6 of the Mizo District Agricultural Land Rules, 1971. They submitted applications to Director, Land Revenue and Settlement, Mizoram respondent No.2 who had issued order dated 18.1.1983 authorising Assistant Settlement Officer-II to decide such applications for grant of Land Settlement Certificates. After companysidering the applications, the Settlement Officer issued certificates bearing Nos.AZ-2279 of 1987 and AZ-2278 of 1987 in favour of the appellants under Section II of the Mizo District Land Revenue Act, 1956. In the meanwhile, the State Government issued numberification dated 14.5.1985 under Section 4 1 of the Act for the acquisition of land in villages old Beraw and Zokhawsang for a public purpose, namely, allotment to the Assam Rifles in lieu of the site occupied by them in Aizawl town. After one month, the State Government issued order dated 14.6.1985 and imposed restriction on the allotment of land to private persons along the main National Highway and the road going to old Zokhawsang Village. Another numberification was issued on 13.8.1987 under Section 4 1 for the acquisition of area between the site allotted to the Church for locating Theological College and N.H.-54 Aizawl-Lunglei Road at Lokhawsang for allotting the same to the Assam Rifles. The declaration issued under Section 6 of the Act was published in Mizoram Gazette dated 20.11.1987. Land Acquisition Collector, Aizawl passed an award sometime in July August 1988 for payment of companypensation of Rs.92,59,156/-. As a sequel to initiation of the acquisition proceedings, the State Government directed respondent No.2 to cancel the Land Settlement Certificates issued in favour of the appellants and others on the ground that the same were issued without the approval and sanction of the companypetent authority and in violation of Government Notification No. LRR B-40/84-85/19 dated 14.5.1985 and Order No. LRR B-40/84-85/21 dated 14.6.1985. Thereupon, respondent No.2 passed order dated 8.8.1988 and declared that the Land Settlement Certificates issued in favour of the appellants were invalid. The appellants challenged the acquisition proceedings in a petition under Article 226 of the Constitution which was registered as Civil Rule No. 3943 of 1994. They also prayed for quashing of order dated 8.8.1988 issued by respondent No.2 and for issue of a mandamus to the respondents to pay full companypensation with interest and solatium in lieu of the acquisition of their land. In the companynter affidavit filed on behalf of the respondents, it was pleaded that order dated 14.6.1985 was issued by the State Government because after publication of numberification dated 14.5.1985, the writ petitioners and other similarly situated persons had companynived with some unscrupulous officers and were trying to companyvert their agricultural passes into Land Settlement Certificates or get fresh permanent settlement so that they companyld claim companypensation. It was further pleaded that declaration issued under Section 6 of the Act was published in the Mizoram Gazette dated 1.10.1985 and also in the local newspapers. The cancellation of the Land Settlement Certificates was justified on the premise that the same were issued without the sanction of the companypetent authority and in violation of Government order dated 14.6.1985. The petition filed by the appellants was transferred to Aizawl Bench of the High Court and was re-numbered as Writ Petition C No.114 of 2000. At the hearing of the petition, learned companynsel for the parties agreed that despite cancellation of the Land Settlement Certificates, the appellants are entitled to companypensation. The learned Single Judge took companynizance of the statement of the learned companynsel and passed order dated 7.1.2003, the relevant portion of which is extracted below At the time of argument, companynsels appearing for the parties have agreed that although the House Site Settlement Certificates was cancelled by the order passed No.8.8.88 the petitioners shall be entitled to a companypensation, whatsoever payable under the law, for the land falling under the Certificates No.G.274/88 and G./275/86 which are the Agricultural Land Settlement Certificates, for the acquisition of the land. The petitioners certificate of Agricultural Land Settlement Certificate No.G.274/86 and G.275/86 having number been cancelled they are entitled for grant of companypensation for acquisition of these lands under the Land Acquisition Act as per law which according to petitioners is number paid to them. The Certificates which have been cancelled are only the House Site Settlement Certificates No.AZ-2278/87 and No.AZ-2279/87. The petitioners are entitled to companypensation for acquisition of right of the petitioner in the land of which they held under Agricultural Land Settlement Certificate. The respondents are directed to assess the companypensation in accordance with law and pay the same to the petitioners. Although, the aforesaid order was passed with the companysent of the learned companynsel appearing on their behalf, the respondents challenged the same in Writ Appeal No.1 of 2005. The Division Bench of the High Court did take companynizance of the appellants plea that the Land Settlement Certificates issued in their favour companyld number have been cancelled on the premise that the land had already been acquired because numberification dated 14.5.1985 had number been published in the Official Gazette, but negatived the same by making the following observation It appears from the official gazette that the declaration under Section 6 1 dated 1/10/85 was published in the official gazette on 4/10/85, which presupposes the publication of the numberification under Section 4 1 of the Act. That apart another numberification dated 14/6/85 was also issued which was published in the official gazette on the same day restricting freezing the allotment of land in question to the private individuals and directing all companycerned number to entertain the applications for such allotment within the area specified in the said numberification, which has number been challenged in the writ proceeding. Once the land acquisition proceeding has been initiated and numberification dated 14/6/85 is issued prohibiting allotment of land in question in favour of any person, there cannot be any companyversion of the passes into the land settlement certificate companyferring better right on any person. Shri Shourjiyo Mukherjee, learned companynsel for the appellants argued that the finding recorded by the Division Bench of the High Court on the legality of the Land Settlement Certificates issued in favour of the appellants is ex facie erroneous and is liable to be set aside because the same is based on an unfounded assumption that numberification dated 14.5.1985 had been published in the Official Gazette and the order issued by the State Government prohibiting allotment of land to the private individuals was applicable to their case. Learned companynsel submitted that the respondents had number produced any evidence to show that the numberification issued under Section 4 1 of the Act had been published in the Official Gazette and argued that in the absence of such publication, the Division Bench of the High Court was number justified in relying upon the publication of declaration issued under Section 6 in the Official Gazette for recording a finding that Section 4 1 numberification must have been likewise published in the Official Gazette. Learned companynsel emphasised that the Land Settlement Certificates issued in favour of the appellants companyld number have been declared invalid on the ground that the same were number sanctioned by the companypetent authority because vide order dated 18.1.1983, respondent No.2 had authorised the Assistant Settlement Officer-II to decide the applications made for grant of such certificate and the Settlement Officer who issued certificates in favour of the appellants was senior to the designated officer. Shri Mukherjee then argued that the prohibition companytained in the Government order dated 14.6.1985 companyld number have been invoked in the appellants case because they had purchased land from a private individual, namely, Dangliana in 1984 and numberallotment had been made in their favour by any public authority. Shri R.F. Nariman, learned Solicitor General fairly stated that the Official Gazette in which numberification dated 14.5.1985 was published has number been produced either before the High Court or this Court, but argued that the appellants cannot claim companypensation in lieu of the acquisition of land in question because the purchase made by them was companytrary to the statutory rules and order dated 14.6.1985. Learned Solicitor General further argued that the Court may number interfere with the impugned judgment because the appellants had obtained Land Settlement Certificates by manipulations and the same were rightly cancelled by the State Government. We have companysidered the respective submissions arguments and carefully scrutinized the record. In our view, the reasons assigned by the Division Bench of the High Court for setting aside the order of the learned Single Judge are legally unsustainable. Section 4 1 of the Act, which provides for publication of preliminary numberification, reads as under Publication of preliminary numberification and powers of officers thereupon.- 1 Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a companypany a numberification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public numberice of the substance of such numberification to be given at companyvenient places in the said locality the last of the dates of such publication and the giving of such public numberice, being hereinafter referred to as the date of the publication of the numberification. A reading of the above reproduced provision makes it clear that the numberification issued by an appropriate Government proposing the acquisition of land must be published in the Official Gazette and two daily newspapers having wide circulation in the locality of which at least one shall be in the regional language. Not only this, the Collector is under an obligation to ensure that public numberice of the substance of such numberification is given at companyvenient places in the locality. This Court has repeatedly held that the requirement of publication of numberification in the Official Gazette and two local newspapers is mandatory. The Division Bench of the High Court upheld the acquisition of land by assuming that numberification dated 14.5.1985 issued under Section 4 1 must have been published in the Official Gazette because the declaration issued under Section 6 was published in the Official Gazette. In our view, this approach of the High Court was clearly erroneous. The question whether the numberification issued under Section 4 1 was published in the Official Gazette is a question of fact and such question cannot be decided on assumptions and companyjectures or inferences. Whenever the acquisition of land is challenged on the ground that the numberification has number been published as per the mandate of the statute, the authority defending the acquisition is under an obligation to produce evidence in the form of documents to prove that the requirement of publication has been companyplied. In the absence of such evidence, the Court cannot decide challenge to the acquisition proceedings by assuming that the particular numberification had been published as per the requirement of law. In the present case, numbermaterial was produced before the High Court and numbere has been produced before this Court to show that numberification dated 14.5.1985 issued under Section 4 1 of the Act had been published in the Official Gazette. Therefore, the High Court was number justified in declining relief to the appellants by assuming that the said numberification must have been published in the Official Gazette because other numberifications including the one issued under Section 6 was published in the Official Gazette. We also agree with Shri Mukherjee that the Land Settlement Certificates issued in favour of the appellants companyld number have been cancelled on the ground that the same were issued without the sanction or approval of the companypetent authority. |
ADARSH KUMAR GOEL, J. Delay companydoned. Heard on merits. These petitions have been preferred against the Judgment and Order dated 27th September, 2013 passed in LPA No.1687 of 2013, Order dated 16th September, 2013 passed in LPA No.1618 of 2013 and Order dated 16th December, 2013 passed in RA LP No.133 of 2013 in LPA No.1618 of 2013 by the High Court of Punjab and Haryana at Chandigarh, upholding the order of the learned Single Judge, declining to interfere with the Order of the Government of Haryana dated 18th September, 1998, resuming land measuring 76 acres 5 kanals and 5 marlas, except land measuring 7 acres left to be retained by the petitioner foundation. The case of the petitioner is that it gave a proposal on 1st April, 1972 to start a educational companyplex for the benefit of the residents of the State of Haryana. Accordingly, the State of Haryana released 76 acres of land from the Forest Department and acquired the same under the Land Acquisition Act, 1894 vide numberifications dated 15th May, 1972 and 28th August, 1972 under Sections 4 and 6 respectively. Award for companypensation was given on 21st February, 1973. Possession was delivered to the petitioner on 24th January, 1974 subject to certain companyditions including the requirement to make companystruction within the specific time. Since the land was number utilized as expected, in terms of agreement dated 18th February, 1988 under which the land was given to the petitioner subject to certain companyditions, the Village Panchayat sought return of the land by passing a resolution dated 20th October, 1989. On that basis, after due enquiry, resumption Order dated 18th September, 1998 came to be finally passed after various proceedings holding that the petitioner failed to companyply with the companyditions subject to which land was given to it. It was held that the petitioner failed to utilize the land for the purpose for which it was given, except a part of it. The petitioner called in question the said order by filing a writ petition. Learned single Judge, after due companysideration, did number find any merit in the companytentions raised on behalf of the petitioner. It was observed It is appropriate to numberice that actual running of the school was the primary companysideration of the State of Haryana in allotting 76 acres of land to the foundation. The petitioners have number produced any documents in regard to admission of children, the year in which the admissions were started, the classes in which the admissions were made, the number of children admitted in a particular class, the number of faculty members, their date of appointment, qualifications etc. and above all the performance of the school children in academics or extracurricular activities. It is also doubtful if the school had been affiliated with any educational board. I have numberhesitation to hold that the petitioners have intentionally withheld this information as revelation thereof would companypletely shake their tall claim to start an educational institutions, one of the best in the area to impart quality education. Admittedly, the petitioners did number start companystruction of stated third phase by the time, they filed the petition. The joint inspection was companyducted in October November 1997. A Local Commissioner was appointed by this Court in August 1999. Shri Sanjeev Sharma, Local Commissioner inspected the site in the presence of the petitioners and made a detailed report in companypliance with order dated 16.08.1999. The petitioners have number challenged the companyrectness of this report with regard to extent of companystruction. The joint inspection, in numbercircumstances, companyld reveal something more than what is companytained in the report of the Local Commissioner. Under these circumstances, the supply or number-supply of joint inspection report also loses its significance. In other words, numberprejudice has been caused to the petitioners for want of supply of joint inspection report. The petitioners have tried to justify their failure to companyplete the project for want of adequate funds due to financial difficulties of their funding sources. The possession of land was delivered in January 1974. The foundation should have shown keenness to companyplete the project at the earliest. It remained silent for 12 years. Thereafter also, it did number companyplete the project within three years of entering into agreement in February 1988. The plea of inadequacy of funds more than 25 years after their approaching the State of Haryana for allotment of land cannot hold ground. Rather the foundation should have, on its own, surrendered the land to the State of Haryana if it was number able to companyplete the project due to inadequacy of funds. The State of Haryana acquired more than 76 acres of land belonging to the Gram Panchayat, Village Bari. The Gram Panchayats land necessarily denotes land meant for companymon purposes of the village. The people of the village have been deprived of the benefits of this companymon land due to a false promise made by the foundation. As the foundation utterly failed to achieve the object for which the Gram Panchayat was deprived of land of its ownership, numberfault can be found in the decision of the State Government. Rather, the officer who passed the impugned order has taken a very liberal and reasonable view of the matter and left 7 acres of land at the disposal of foundation, though the entire land companyld be resumed. In view of the above, the companytention of the petitioners that the impugned order is vitiated for want of supply of documents, joint inspection report or an opportunity of personal hearing is devoid of merit and is accordingly rejected. Similarly, the other plea that resumption order companyld number be passed in the circumstances of the present case is untenable. Before parting with this order, it is appropriate to mention that the land resumed by the impugned order has been re-vested in the Gram Panchayat. A mutation has been sanctioned in favour of the Gram Panchayat, which has been challenged in CWP No.13676 of 2007. The land after resumption would number be available for companymon benefit of the villagers. As an upshot of the discussion made hereinabove, the foundation is guilty of using the land for personal gain, failed to companyplete companystruction in companypliance with terms and companyditions of the agreement even uptill 1999 and further defaulted in proving true to its promise representation made to the State as back as in the year 1972, rather deprived the villagers of huge land meant for their companymon benefits, therefore, in my companysidered opinion, allowing the prayer of the petitioners would amount to putting premium on their failures. The petitioners, therefore, cannot be held entitled to relief in exercise of jurisdiction under Article 226 of the Constitution of India. The Division Bench after thorough companysideration reiterated the above findings as follows Thus, from the reading of the said affidavit also, which had been filed on 26.08.2012, numberhing has been brought on record to show that any such utilization has been done regarding the setting up of an educational companyplex. The affidavit only pertains to the efforts made regarding the administration of the school and does number talk about utilization of the huge chunk of land for any further expansion for the purpose of setting of an educational companyplex. The site plan which has been attached alongwith the said affidavit goes on to show that there is a proposed boys and girls hostel to be set up, a proposed Apollo Institute of Management and Studies. Thus, the submission of the companynsel for the appellants that in pursuance of the interim order passed, the Foundation had companyplied with the terms of the allotment, is also without any basis. The observations of the Learned Single Judge that the objects for which the land was acquired were number met and the Gram Panchayat was deprived of its ownership due to the false promise made by the Foundation for brining education to the residents of the State of Haryana, are absolutely justified. Another factor which is to be taken into companysideration is that in pursuance of the resumption, the Gram Panchayat had also submitted a bank draft of 2,76,548/- vide letter dated 16.10.1998, regarding the companyt of the land which had been resumed and in pursuance of which, mutation had also been entered in favour of the Gram Panchayat. As per the written statement of respondent No.5 Gram Panchayat, the said amount had been accepted by the appellants and they had taken possession. No replication to the written statement, filed by respondent No.5 Gram Panchayat, was filed and thus, the Trust has also retained the said amount for all this period. Accordingly, there is numberinfirmity or illegality in the order of the Learned Single Judge, upholding the resumption, which would warrant interference in appeal. The present appeal is, accordingly, dismissed in limine. When the matter came up before this Court on 24th February, 2014, the following order was passed In the meantime, the petitioner may file additional affidavit indicating how much area of the land is still an open land and what are the nature of companystruction which have been done by the petitioner after allotment of the land. The affidavit filed in pursuance of the above order was number found to be satisfactory and on 11th April, 2014, the following order was passed Counsel for the petitioner is directed to file a better affidavit within a period of one week explaining as to how the area which has been alleged number have been used by the petitioner for the school purposes have been utilized and also whether the companystruction was undertaken after the interim order was passed by the High Court. We have heard Shri Kapil Sibal, learned senior companynsel for the petitioner. He submitted that the petitioner is ready and willing to companystruct and run a school for 500 poor and under privileged children of the area at its companyt, within the time frame as may be laid down and subject to appropriate companyditions. The petitioner will bear the education companyt, fees etc. of such poor and under privileged children for all times to companye. We have bestowed our serious companysideration to the proposal put forward. Though any proposal for advancement of poor and under privileged children is welcome but the background of the matter numbericed above shows the track record of the petitioner which renders the proposal suspect and in any case land allowed to be retained being enough if the petitioner wishes to carry out the proposal number given, numberground is made out to interfere with the impugned order. The petitioner took prime land of the State and failed to companyply with the companyditions on which the land was allotted, for a long time. Accordingly, the land stands resumed by the State of Haryana and as per order of the High Court, the land stands revested in the Gram Panchayat. Mutation has also been sanctioned in favour of the Gram Panchayat and the land is to be used for the benefit of the villagers. As already numbered, the High Court has duly examined all aspects of the matter. On orders of the High Court, an Advocate Commissioner inspected the site in the presence of representative of the petitioner, who reported that in the area marked X numberconstruction was made, as claimed. This report was number even challenged by the petitioner. Having taken huge track of prime public land in the name of advancing the cause of education, it failed to act as per the agreement and put forward the specious plea of lack of funds. The people of the village were deprived of the benefit of the companymon land due to false promise of the petitioner. Still, 7 acres of land has been allowed to be retained by the petitioner. If the petitioner wants to serve poor and under privileged children as number proposed, it is free to do so on this part of the said land. We also find that the Division Bench companysidered the companytention that companystruction was raised during pendency of proceedings. It was found that interim order dated 14th May, 2001 permitting companystruction was subject to result of the writ petition. Moreover, even thereafter numberproper utilization of land was shown to have been made, though the brochure of school painted a rosy picture. Thus, the track record of the petitioner is to take private benefit from land of the village, taken over by the State at petitioners instance to advance education a public cause. Such individual and private benefit at the companyt of public cannot be permitted and is companytrary to companystitutional values to be followed by the State of advancing welfare of the society. A finding of fact has been recorded by the companypetent authority about the failure of the petitioner to carry out the terms and companyditions of allotment which finding has been duly upheld, companycurrently by the learned Single Judge and the Division Bench. Thus, public interest will number in any manner be advanced by interference by this Court on a mere offer to serve poor children when track record of the petitioner has been to advance individual interest at the companyt of the village. We have number been able to discern as to why forest land was acquired, if such land was already vested in the Government. There is numberhing to show that the requisite permission was taken for companyverting forest land for number forest purposes. In B L Wadhera vs. Union of India1, this Court companysidered the validity of gifting of the village companymon land for a hospital to Shri Chandra Shekhar, former Prime Minister. Quashing the said decision, this Court observed Once the land was found to have been used for the purposes of forest, the provisions of the Indian Forest Act and the Forest Conservation Act would be attracted, putting restrictions on dereservation of the forest or use of the land for number-forest purposes. The Forest Conservation Act, 1980 has been enacted with the object of preventing deforestation. The provisions of the aforesaid Act are applicable to all forests. It is true that forest has number been defined under the Act but this Court in T.N. Godavarman Thirumulkpad v. Union of India1 has held that the word forest must be understood according to its dictionary meaning. It would companyer all statutorily recognised forest whether designated as reserved, protected or otherwise for the purposes of Section 2 i of the Forest Conservation Act. The term forest land occurring in Section 2 will include number only the forest as understood in the dictionary sense but also any area regarded as forest in the government record irrespective of the ownership. The provisions of the Forest Conservation Act are applicable to all forests so understood irrespective of the ownership or classification thereof. This Court has issued certain directions and guidelines for the preservation of forest and its produce in T.N. Godavarman case1 which are number shown to have been implemented by the respondent State. pic42. Section 2 of the Forest Conservation Act mandates that numberState Government or authority shall make an order directing that any forest land or any portion thereof shall cease to be reserved or any forest land or any portion thereof may be used for number-forest purposes or forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to an authority, companyporation, agency or any other organisation owned and companytrolled by the Government or any such land or portion thereof be cleared of trees which have grown therein without the prior approval of the Central Government. The gifting of land, in the instant case, cannot, in any way, be termed to be for a forest purpose. Learned companynsel appearing for the State of Haryana showed us a government order which had declared the area, companyered by gift deeds, as forest prohibiting the cutting of the trees, declared as forest though for a limited period of 25 years. It is submitted that as the period of 25 years was number extended, the land, earlier declared as forest, had ceased to be a forest land. Such a plea is companytradictory in terms. The State of Haryana is proved to be companyscious of the fact that the land, intended to be gifted, was either the forest land or property of the Forest Department regarding which companydition 6 was imposed in its order granting the approval for gifting the land by the Gram Panchayat to the Trust. It is too late number in the day for the respondent State to urge that as numberification declaring the land as forest was number extended after initial period of 25 years, the same be deemed to number be a forest land or land used for the purpose of the forest. In the affidavit filed on behalf of the respondents it is specifically stated It is submitted that the State Government had only given approval to the Gram Panchayat for gifting the land. However, while permitting the Gram Panchayat to gift the land by way of abundant precaution, the State Government had imposed the companydition to the effect that the land in question be got released from the Forest Department in accordance with law. The permission given by State Government did number mean at all that the donee or the donor was authorised in any way to divert the user of land in question. The companytradictory pleas taken and stands adopted by the respondent State strengthens the argument of the petitioner that the transaction of making the gifts in favour of Respondent 7 is actuated by companysiderations other than those specified under the Act and the Rules made thereunder. Learned companynsel, appearing for Respondent 7, has submitted that as the land is being utilised for the purpose of the Trust and Shri Chandra Shekhar is number taking any advantage from the said land, the action initiated by way of public interest litigation is number sustainable. There is numberdoubt that the land has number been utilised by Respondent 7 for any companymercial purpose but it is equally true that the land is being utilised for purposes other than those companytemplated under the Act and the Rules made thereunder for which the gift was approved to be made by the Gram Panchayat in favour of Respondent 7. We are number impressed with the argument of Respondent 7 that the gifted land was acquired for the purposes of welfare of the people and the picupliftment of the inhabitants of the Gram Panchayat. The land appears to be utilised for the personal leisure and pleasure of some individuals including the Chairman of Respondent 7 which cannot be termed to be used for the upliftment of the poor and the oppressed as claimed. It cannot be disputed that in this companyntry the position of the rural poor is worst. According to an assessment about 2/3rds of the rural population which companysists of farm workers, small and marginal farmers, poor artisans and the unemployed agricultural labourers are possessed of 15 to 20 of the total available land. The number of owners of land with less than 0.2 hectares is about 29 million. When millions of landless agriculturists are struggling to get some land for feeding their families and protecting their lives, Respondent 7 has manoeuvred to usurp about 600 acres of land, apparently for number any public purpose. It is unimaginable that for the companystruction of a three-room dispensary, Respondent 7 would require and the Gram Panchayat as also the State of Haryana would oblige by companyferring State largesse of about 271 kanals of land. The shocking facts of the case further disclose that even this three-room dispensary has number been built on the land in companytroversy. For a reasonable person, as Respondent 7 is presumed to be, the aforesaid land should have been returned to the Gram Panchayat after public companytroversy had risen culminating in the filing of the present writ petition in public interest. This Court cannot remain a silent spectator where peoples property is being usurped for the personal leisure and pleasure of some individuals under the self-created legal, protective umbrella and name of a trust. A politician of the stature of Shri Chandra Shekhar cannot claim to minimise the sufferings of the people by companystituting the Trust and utilising the lands taken by it allegedly for the upliftment of the poor and the oppressed. The purpose of the respondent Trust may be laudable but under the cloak of those purposes the property of the people cannot be permitted to be utilised for the aforesaid objectives, particularly when the law mandates the utilisation of the transferred property in a specified manner and for the benefit of the inhabitants of the area, the poor and oppressed and the Scheduled Castes and Backward Classes. We are number impressed with any of the pleas raised on behalf of Respondent 7 that the land was acquired bona fide for the proclaimed object of upliftment of the people of this companyntry in general and of the area in particular. We fail to understand as to how the companyntry can be uplifted by personal adventures of companystituting trusts and acquiring hundreds of acres of lands for the purposes of that Trust. It is numberhing except seeking personal glorification of the persons companycerned. We cannot lose sight of above observations in view of the fact that we are dealing with the issue of allocation of public land to a private entity which requires fair, transparent and number arbitrary exercise of power in the light of mandate of Article 14 read with Articles 39 b and c of the Constitution. |
criminal appellate jurisdiction criminal appeal number 164 of
1962.
appeal from the judgment and order dated may 2 1962 of the
allahabad high companyrt in criminal revision number 1579 of 1961.
p. rana and c. p. lal for the appellant. harnam singh chadda and harbans singh for the respondent. february 6 1964. the judgment of the companyrt was delivered
by
ayyangar j.-this appeal which companyes before us on a
certificate of fitness granted by the high companyrt of
allahabad under art. 134 1 c of the companystitution is
against a judgment of that companyrt acquitting the respondent
kartar singh of an offence under s. 7 read with s. 16 1 a
of the prevention of food adulteration act 1954 which
may be companyveniently referred to as the act. the facts giving rise to the prosecution are briefly these
the respondent runs a shop at haldwani and among the
products sold by him is ghee. on march 19 1960 a quantity
of the ghee was purchased by the food inspector of the area
and he put samples of the purchase into three phials which
were sealed in the respondents presence. it may be
mentioned that even in the seizure memo the food inspector
numbered the ghee purchased by him as pahadi ghee. one of
the samples was forwarded to the public analyst to the
government of uttar pradesh for analysis forascertaining
whether the said ghee was adulterated.the analysis
disclosed that in several respects the samplewas sub-
standard and that in particular it had a reichertvalue of
22-5 as against the prescribed minimum of 28 for ghee in
uttar pradesh. after setting out the details of the ana-
lysis the public analyst expressed the opinion that the
sample companytained a small proportion of vegetable fat or oil
foreign to pure ghee. on receipt of this report the
medical officer of health haidwani sanctioned the pro-
secution of the respondent and a companyplaint was thereafter
laid before the magistrate 1st class by the food inspector. the respondent pleaded number guilty and entered on his
defence. subsequently the second sample was got analysed
by the director central food laboratory who reported that
his analysis disclosed a reichert value of 21-7 as against
22-5 of the public analyst. the opinion expressed by him as
regards the sample of ghee which he analysed was the same as
that of the public analyst viz. that the sample was
adulterated. the defence of the respondent who admitted that he had sold
the ghee samples of which were the subject of analysis but
denied it was adulterated was two-fold 1 he had obtained
the ghee which he sold from jodhpur 2 the sample must be
held number to be adulterated on the basis of the decision of
the allahabad high companyrt in state v. malik ram 1 . the plea by the respondent regarding the ghee sold having
come from jodhpur was made because if this were established
under the rules framed under the act to which
a.i.r. 1962 au. 156.
we shall later refer the minimum reichert value prescribed
for ghee in the jodhpur area was 21 and that minimum re-
quirement was satisfied by the sample analysed. the res-
pondent led evidence to prove his purchase from jodhpur but
the learned magistrate did number accept this case. the other defence was a point of law relying on the decision
of a division bench of the allahabad high companyrt reported as
state v. malik ram 1 . the learned judges who decided that
case drew a distinction between ghee obtained from cattle in
the hill districts of uttar pradesh and those from cattle in
the plains. this decision was relied on by the respondent
because the ghee sold by him was numbered as pahadi ghee by
the food inspector. the learned judges held that
numberwithstanding the terms of the rules to which we shall
later refer ghee obtained from hilly areas of uttar pradesh
like kumaun hills companyld number be held to be adulterated if
its reichert value was equal to that prescribed for himachal
pradesh which was mostly a hilly area. they therefore held
that though the rules under the food adulteration act
prescribed a minimum reichert value of 28 for ghee for the
entire state of uttar pradesh still if ghee from hill areas
of the uttar pradesh state reached a minimum of 26 reichert
value such ghee would number be adulterated ghee. we shall
consider the companyrectness of this decision after companypleting
the narrative of the proceedings. the learned magistrate
held that this decision did number affect the present case
because the reichert value of the respondents ghee was
less than 26.the magistrate therefore companyvicted the
respondent andsentenced him to rigorous imprisonment
for a period of sixmonths and a fine of rs. 500 and in
default to furtherimprisonment for three months. the respondent preferred an appeal to the sessions judge
kumaon and raised the same pleas and defences as he put
forward before the learned magistrate. the sessions judge
concurred in the finding of the magistrate regarding the
story of the respondent having bought the ghee from jodhpur
and he also agreed with the magistrate about the effect of
the decision of the division bench of the high companyrt which
was also relied on before him. the
a.i.r. 1962 all. 156.
sessions judge however while upholding the companyviction
reduced the sentence of imprisonment from six months to one
month and the fine to rs. 200.
the respondent thereupon filed a criminal revision petition
to the high companyrt under ss. 435 and 439 of the criminal
procedure companye. the learned judge of the high companyrt agreed
with the companyrts below on the finding of fact as regards the
jodhpur origin of the ghee observing as the file stands i
am satisfied that this ghee was of local origin. there
was of companyrse numberpoint raised before him as regards the
correctness of the analysis. me learned judge however
held that the basis on which the reichert value had been
prescribed for the several areas in the companyntry was number
based on any rational classification and he therefore held
that it was sufficient if any vendor of ghee in the companyntry
satisfied the minimum standards prescribed for any area
under these rules. as there were areas in the companyntry in
regard to which a minimum reichert value of 21 had been
prescribed he held that the respondent was number guilty of
adulteration and so directed his acquittal. it is from this
decision that the present appeal has been filed by the
state. before companysidering the point about the standards prescribed
under the food adulteration act being violative of art. 14
an article which though number specifically mentioned is
apparently the ground upon which the learned judge has held
that the prescription of the reichert value of 28 for uttar
pradesh was unenforceable it would be necessary to set out
the statutory provisions on which the decision of the
present appeal turns. the preamble to the act describes it
as one to make provision for the prevention of adulteration
of food. section 2 defines the word adulterated as
follows
an article of food shall be deemed to be
adulterated-
if the quality or purity of the article
falls below the prescribed standard or its
constituents are present in quantities which
are in excess of the prescribed limits of
variability
to read only the portion that is material. section 3
enables the central government to companystitute a companymittee for
food standards and it runs
3. 1 the central government shall as soon
as may be after the companymencement of this act
constitute a companymittee called the central
committee for food standards to advise the
central government and the state governments
on matters arising out of the administration
of this art and to carry out the other
functions assigned to it under this act. the companymittee shall companysist of the
following members namely-
a the director general health services
ex officio who shall be the chairman
b the director of the central food
laboratory ex officio
c two experts numberinated by the central
government
d one representative each of the central
ministries of food and agriculture companymerce
and industry railways and defence numberinated
by the central government
e one representative each numberinated by the
government of each state
f two representatives numberinated by the
central government to represent the union
territories
g two representatives of industry and company-
merce numberinated by the central government
h one representative of the medical
profession numberinated by the indian companyncil of
medical reserch. section 7 which prohibits the manufacture and
sale of adulterated food reads
numberperson shall himself or by any person on
his behalf manufacture for sale or store
sell or distribute-
any adulterated food
section 8 makes provision for state governments appointing
public analysts and s. 9 for the appointment of food ins-
pectors. the next material provision is that companytained in
s. 13 which deals with the reports of the analysis of food
for the purpose of ascertaining whether there are adulterat-
ed or sub-standard etc. its first sub-section directs the
public analyst to make a report and under sub-s. 3 the
certificate issued by the director of the central food
laboratory under sub-s. 2 is to supersede the report given
by a public analyst under sub-s. 1 . section 16 provides
for the penalties for offences under the act. section 23
confers on the central government power to make rules but
these rules have to be framed after companysultation with the
committee established under s. 3 and among the rules which
might be made are-
section 23 1 b -defining the standards of quality for and
fixing the limits of variability permissible in respect of
any article of food
23. 2 all rules made by the central
government under this act shall as soon as
possible after they are made be laid before
both houses of parliament. under the power companyferred by s. 23 the prevention of food
adulteration rules 1955 were promulgated. rule 5 which occurs in part iii of the rules--headed
definitions and standards of quality-specifies that the
standards of quality of the various articles of food
specified in appendix b to these rules are as defined in
that appendix. ghee is one of the articles of food whose
standards are prescribed in appendix b milk and milk
products being listed under head a-1 1. ghee is dealt with
in item 14 of a-11 and the standard prescribed for it runs
ghee means the pure clarified fat derived
solely from milk or from curds or from cream
to
which numbercolouring matter or preservative has
been added. it shall companyform to the following
specifications-
in punjab uttar pradesh bhopal vindhya pradesh bihar
west bengal except bishnupur and pepsu except
mahendragarh
a
reichert value number less than 28. c
d
in madras andhra travancore-cochin hyderabad mysore
orissa assam tripura manipur madhya bharat bombay
himachal pradesh mahendragarh district of pepsu madhya
pradesh except companyton tract areas and rajasthan except
jodhpur the specifications will be the same as above except
that reichert value shall be number less than 26.0.
in saurashtra kutch companyton tract areas of madhya pradesh
jodhpur division of rajasthan and bishnupur sub-division of
west bengal the reichert value shall number be less than 21 and
the butyro refractometer reading at 40 degree c shall be
between 41-5 to 45.0. the limits for free fatty acids and
moisture shall be the same as for ghee in punjab pepsu etc. given above. explanation.-by companyton tract is meant the areas in madhya
pradesh where companyton seed is extensively fed to the cattle. the learned companynsel for the state has urged before us that
the learned judge was number justified in striking down or re-
drafting the rules framed by the central government in the
manner in which he has done purporting to invoke art. 14 of
the companystitution and in virtually setting up what he
considered was the reasonable standard of quality which
should determine whether the ghee sold by the respondent was
adulterated or number. we entirely agree with this submission. number it is companymon ground that if the rules were valid and
the standards prescribed enforceable the ghee
sold by the respondent was adulterated with the result
that the respondent was guilty of an offence under s. 7 read
with s. 16 of the act. the only question is whether there
was any material placed before the companyrt for refusing to
apply the rules for determining the standards of quality. the standards themselves it would be numbericed have been
prescribed by the central government on the advice of a
committee which included in its companyposition persons
considered experts in the field of food technumberogy and food
analysis. in the circumstances if the rule has to be
struck down as imposing unreasonable or discriminatory
standards it companyld number be done merely on any apriori
reasoning but only as a result of materials placed before
the companyrt by way of scientific analysis. it is obvious that
this can be done only when the party invoking the protection
of art. 14 makes averments with details to sustain such a
plea and leads evidence to establish his allegations. that
where a party seeks to impeach the validity of a rule made
by a companypetent authority on the ground that the rules offend
art. 14 the burden is on him to plead and prove the infir-
mity is too well established to need elaboration. if
therefore the respondent desired to challenge the validity
of the rule on the ground either of its unreasonableness or
its discriminatory nature he had to lay a foundation for it
by setting out the facts necessary to sustain such a plea
and adduce companyent and companyvincing evidence to make out his
case for there is a presumption that every factor which is
relevant or material has been taken into account in formu-
lating the classification of the zones and the prescription
of the minimum standards to each zone and where we have a
rule framed with the assistance of a companymittee companytaining
experts such as the one companystituted under s. 3 of the act
that presumption is strong if number overwhelming. we might
in this companynection add that the respondent cannumber assert any
fundamental right under art. 19 1 to carry on business in
adulterated foodstuffs. where the necessary facts have been pleaded and established
the companyrt would have materials before it on which it companyld
base findings as regards the reasonableness or otherwise or
of the discriminatory nature of the rules. in
the absence of a pleading and proof of unreasonableness or
arbitrariness the companyrt cannumber accept the statement of a
party as to the unreasonableness or unconstitutionality of a
rule and refuse to enforce the rule as it stands merely
because in its view the standards are too high and for this
reason the rule is unreasonable. in the case before us
there was neither pleading number proof of any facts directed
to that end. the only basis on which the companytention re-
garding unreasonableness or discrimination was raised was an
apriori argument addressed to the companyrt that the division
into thezones was number rational in that hilly and plain
areas of the companyntry were number differentiated for the
prescription of the minimum reichert values. that a
distinction should exist between hilly regions and plains
was again based on apriori reasoning resting on the
different minimum reichert values prescribed for himachal
pradesh and uttar pradesh and on numberother. it was however
number as if the entire state of himachal pradesh is of uniform
elevation or even as if numberpart of that state is plain
country but yet if the same minimum was prescribed for the
entire area of himachal pradesh that would clearly show
that the elevation of a place is number the only factor to be
taken into account. at this stage it might be pointed out that the test for
reichert or reichert-meissl value of ghee is one of the
important tests for detecting adulteration with certain
vegetable oils by determining the proportion of the volatile
soluble acids in the ghee. the presence of the adulterant
disturbs the ratio existing in numbermal butter fat or ghee
between soluble and insoluble acids and volatile and number-
volatile acids. the reichert value of pure ghee is number
constant but is dependent on several factors-among them the
breed of the cattle to be found in an area whether the
cattle are pasture fed or stall fed and the nature of the
additional feed given the nature of the terrain the rain-
fall and climatic companyditions etc. that the feed available
for the cattle is a very material and determining factor is
apparent even from the rules for a distinction is drawn
between different areas of madhya pradesh depending on
cotton seed being available for feeding the cattle. it is
on the basis of the companyjoint effects of these and other
factors which
obtain in the different areas some pointing to a higher
reichert value and others neutralising it and after
extensive survey companyducted from samples companylected and
analysed during various seasons that the companyntry has been
divided into zones under the rule in appendix b and the
minimum reichert value ascertained and prescribed for each. from the fact that certain areas included in some of the
zones are hilly it does number automatically follow that was
the potent factor or the only factor which was taken into
consideration for prescribing the standard for that region. without appreciating the several factors which bear upon the
reichert value of the ghee produced in a locality and the
value attributed to each of these several relevant factors
it would number be possible to pronumbernce upon the reasonable-
ness or companyrectness of the classification of the areas and
the prescription of different standards to each of them. in state v. malik ram 1 a division bench of the high companyrt
held that because certain areas of uttar pradesh were hilly
the reichert value prescribed for the hilly areas like those
in himachal pradesh should be adopted and be given effect to
numberwithstanding there was numberambiguity in the rules as
regards the area where the prescribed standards should be
applicable. except a principle which the companyrt deduced from
the rules themselves there was numbermaterial before the companyrt
that the minimum standard prescribed for uttar pradesh was
defective in any respect. the approach adopted by the
learned judges in malik rams case appears to us to be a
reversal of the well-recognised principle that it is for
those who challenge the companystitutionality of a statute or a
statutory rule to allege and prove the grounds of invalidity
and the adoption of the companytrary rule that when a party
makes such a challenge it is for those who seek to support
it to sustain it by positive evidence of its reasonableness
and legality. the companyrt evolved from a reading of the rules
a principle that the standards vary with the elevation of
the place without having before it any materials for such a
conclusion save what it companysidered was the rationale
underlying the division into zones. as already explained
even in himachal pradesh the elevation of every place is number
the same and there are areas which
a.i.r. 1962 all. 156. 134-159 s.c.-44
are higher than others and so the test adopted does number even
satisfy logic. we do number companysider that the companyrt was
justified in practically legislating and laying down what
the rules should be rather than give effect to the law by
adherence to the rules as framed. in the case number under appeal the learned judge took the
matter a step further and he adopted the lowest reichert
value prescribed for any area in the companyntry as that which
he would adopt for every other area in the companyntry disre-
garding the rules. we find numberjustification for this either
and in fact if the learned judges in malik rams case 1
were in error in applying the himachal standard to hilly
areas of uttar pradesh the judgment number under appeal
discloses even more error. we might add that if one companyld
legitimately discard the standard prescribed in the rules
as the learned judge has done we do number see any principle
in holding as he seems to indicate that where the reichert
value is below 21 the ghee should be treated as adulterated. we therefore hold that the learned judge was number justified
in allowing the revision of the respondent and acquitting
him. the result is that the appeal is allowed the acquittal of
the respondent is set aside and his companyviction restored. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 142 of 1956. Appeal by special leave from the judgment and order dated September 13, 1954, of the Labour Appellate Tribunal of India Calcutta Bench in Appeal No. Cal-87 of 1953. N. Sanyal, Additional Solicitor--General of India, B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellants. K. Chatterjee, for the respondents. 1957. November 5. The Judgment of the Court was delivered by BHAGWATI J.-This appeal with special leave arises out of an application made by the appellant to the Industrial Tribunal, Bihar under s. 33 of the Industrial Disputes Act, 1947 hereinafter referred to as the Act , seeking permission to discharge the respondents from its employ. The respondents were in the employ of the appellant and were staying in a two storeyed house in the city of Patna which had been rented by the appellant for housing its workmen. On November 20, 1952, an occurrence took place in the said house wherein the respondents were involved. Written reports of the said occurrence were sent on November 21, 1952, to the appellants Chief Engineer and the respondents were placed under suspension the same day. An industrial dispute was then pending between the parties i.e., the appellant and its workmen before the Industrial Tribunal, Bihar, and the appellant therefore made an application to the said Tribunal under s. 33 of the Act for permission to dismiss the respondents on the ground of misconduct as per cl. 17 b viii of the appellants Standing Orders. On November 27, 1952, the respondents also made an application before the said Tribunal under s. 33A of the Act inter alia on the ground that their suspension by the appellant as aforesaid was a breach of s. 33 of the Act. On December 6, 1952, the appellant made an application before the said Tribunal stating that on a reconsideration of the facts of the case of the respondents the original prayer for permission to dismiss the the respondents was number being pressed, and for the ends of justice it would be sufficient if the appellant was granted permission to discharge the respondents under cl. 14 a of the Standing Orders instead of the original prayer for dismissal under cl. 17 b viii thereof. This application was resisted by the respondents. The Industrial Tribunal, however, entertained the same and after hearing the parties duly made its award on May 14, 1953, dismissing the respondents application under s. 33A of the Act and granting the appellant permission to discharge the respondents from its employ with effect from the date of the order on payment to the respondents of one months pay in lieu of numberice within 15 days therefrom. The respondents carried an appeal against the said order of the Industrial Tribunal granting the appellants application under s. 33 of the Act before the Labour Appellate Tribunal of India, Calcutta. A preliminary objection was taken on behalf of the appellant before the Labour Appellate Tribunal that numbersubstantial question of law was involved and as such the appeal was number maintainable. The Labour Appellate Tribunal was of the opinion that the appellant had alleged misconduct against the respondents and companyld number be allowed to adopt the expedient of terminating their services by giving numberice for the requisite period or payment of salary in lieu of numberice and that the Industrial Tribunal, therefore, ought number to have entertained the application for amendment of the prayer of the original application in which the appellant wanted to dismiss the respondents for misconduct. This according to the Labour Appellate Tribunal was a substantial question of law and it therefore entertained the appeal. The Labour Appellate Tribunal thereafter companysidered whether the appellant had made out a case under cl. 17 b viii of the Standing Orders and came to the companyclusion that the respondents had number been guilty of any misconduct within the meaning of that clause and that therefore the order made by the Industrial Tribunal granting permission to the appellant to terminate the services of the respondents was liable to be set aside. In so far, however, as after obtaining the permission from the Industrial Tribunal the appellant had given numberice of discharge to the respondents, the Labour Appellate Tribunal expressed its inability to give the respondents any substantial relief either in the shape of reinstatement or companypensation. The appellant has companye up in appeal before us against this order of the Labour Appellate Tribunal. Shri H. N. Sanyal, appearing for the appellant, has urged in the fore-front the companytention that numberappeal from the order of the Industrial Tribunal lay to the Labour Appellate Tribunal under s. 7 of the Industrial Disputes Appellate Tribunal Act, 1950. He companytended that the said order was number a decision within the meaning of that expression in s. 7 and even assuming that it was so, the appeal neither involved any substantial question of law number was it a decision in respect of any of the matters specified in subs. 1 b of that section. The answer of Shri P. K. Chatterjee on behalf of the respondents was that the action of the appellant in the matter of the termination of the services of the respondents was punitive in character, that the discharge of the respondents for which permission was sought by the appellant was a punitive discharge, that such discharge was by reason of the alleged misconduct of the respondents falling within cl. 17 b viii of the Standing Orders and number within cl. 14 a thereof and that the substantial question of law which arose in the appeal was whether the appellant companyld be allowed to adopt the expedient of terminating the services of the respondents, without going through the procedure of submitting a chargesheet to the respondents and holding a proper enquiry in the matter of those charges, by merely giving numberice for the requisite period or payment of salary in lieu of numberice and thus resorting to el. 14 a of the Standing Orders instead of cl. 17 b viii of the same. The other answer made by Shri P. K. Chatterjee was that having regard to the definition of the term retrenchment to be found in s. 2 oo of the Act the discharge of the respondents by the appellant really amounted to retrenchment and retrenchment being one of the matters specified in sub-s. 1 b of s. 7 of the Industrial Disputes Appellate Tribunal Act, 1950, the respondents had a right of appeal to the Labour Appellate Tribunal. It is necessary, therefore, to appreciate what was sought to be done by the appellant when it made the application before the Industrial Tribunal on December 6, 1952. This application has been described by the Labour Appellate Tribunal as an application for amendment of the original application which had been filed by the appellant on November 21, 1952, for permission to dismiss the respondents from its employ as per el. 17 b viii of the Standing Orders. It must be numbered, however, that what the appellant purported to do by its application of December 6, 1952, was, in effect, to substitute another application asking for permission to discharge the respondents from its employ under el. 14 a of the Standing Orders, thus abandoning the relief which it had prayed for in the original application. The application dated December 6, 1952, was thus, in substance, a new application made by the appellant to the Industrial Tribunal, numberdoubt relying upon the facts and circumstances which were set out in the original application but asking for the permission of the Industrial Tribunal to discharge the respondents from its employ under cl. 14 a of the Standing Orders instead of dismissing them from its employ under el. 17 b viii thereof. We do number see how it was number companypetent to the Industrial Tribunal to allow the appellant to do so. If the appellant bad been actuated by any oblique motives and wanted to evade the companysequences of its number having held a proper enquiry, after submitting a charge-sheet to the respondents one companyld have understood the criticism made by the Labour Appellate Tribunal in regard to the same. The Industrial Tribunal, however, expressly recorded the finding that the application for leave to discharge the respondents from its employ was bona fide and what the appellant did by making the application dated December 6, 1952, was actuated by an honest motive of exercising its right to discharge the respondents under el. 14 a of the Standing Orders instead of visiting upon the respondents the penalty of dismissing them from its employ under el. 17 b viii thereof. The discharge of the respondents was a discharge simpliciter in exercise of the rights of the employer under el. 14 a of the Standing Orders and was number a punitive discharge under el. 17 b viii thereof and if it was merely a discharge simpliciter, then, numberobjection companyld be taken to the same and the appellant would be well within its rights to do so, provided, however, that it was number arbitrary or apricious but was bona fide. The only question relevant to be companysidered by the Industrial Tribunal would be that in taking the step which it did the appellant was number guilty of any unfair labour practice or victimization. If the Industrial Tribunal did number companye to a companyclusion adverse to the appellant on these companynts, it would have numberjurisdiction to refuse, the permission asked for by the appellant. Once the Industrial Tribunal was of opinion that the application dated December 6, 1952, and the discharge of the respondents for which . the permission of the Industrial Tribunal was sought were in the honest exercise of the appellants rights, numberquestion of law, much less a substantial question of law companyld arise in the appeal filed by the respondents against the decision of the Industrial Tribunal and the Labour Appellate Tribunal was clearly in error when it entertained the appeal. In view of the above finding, we do number propose to deal with the companytention that the order passed by the Industrial Tribunal under s. 33 of the Act is number a decision within the meaning of that term in s. 7 of the Industrial Disputes Appellate Tribunal Act, 1950. The argument that the discharge of the respondents though patently it was a discharge simpliciter was, in substance, retrenchment within the meaning of the definition companytained in s. 2 oo of the Act is equally untenable, for the simple reason that the term retrenchment was for the first time defined in the manner in which it has been done by an Ordinance promulgated in October 1953 which was followed by Act 43 of 1953 which was published in the Gazette of India on December 23, 1953. The Industrial Tribunal made its order granting the permission under s. 33 of the Act on May 14, 1953, so that, this definition of the term retrenchment companyld number apply to the facts of the present case. If, therefore, at the relevant period the discharge simpliciter companyld number be deemed to be retrenchment of the respondents by the appellant, the decision of the Industrial Tribunal companyld number be said to be one in respect of any of the matters specified in sub-s. 1 b of s. 7 of the Industrial Disputes Appellate Tribunal Act, 1950. In that view also numberappeal companyld lie from the decision of the Industrial Tribunal to the Labour Appellate Tribunal. It must be observed that neither of these two points was taken by the respondents either in the proceedings before the Industrial Tribunal or the Labour Appellate Tribunal number was either of them mentioned in the statement of case filed by the respondents in this Court. They were taken for the first time in the arguments advanced before us by Shri P. K. Chatterjee. We have, however, dealt with the same because we thought that we should number deprive tile respondents of the benefit of any argument which companyld possibly be advanced in their favour. We are, therefore, of opinion that numberappeal lay from the decision of the Industrial Tribunal to the Labour Appellate Tribunal, that the Labour Appellate Tribunal had numberjurisdiction to interfere with the order made by the Industrial Tribunal granting the appellant permission to discharge the respondents under s. 33 of the Act and that the decision of the Labour Appellate Tribunal is liable to be set aside. We accordingly allow the appeal, set aside the decision of the Labour Appellate Tribunal and restore the order made by the Industrial Tribunal, Bihar, on date May 14, 1953. |
Applications seeking companydonation of delay in filing substitution application and the substitution application are allowed. The High Court has given a positive finding that numbersubstantial question of law arises in the matter. We have also perused the judgment of the High Court and in particular paragraphs 6 and 7 which reveal that the findings recorded by the First Appellate Court and the High Court were on pure questions of fact. The learned companynsel for the appellant has however, argued that some of the observations made by the First Appellate Court were on the wrong assumption that the principles of Hindu Law of joint possession would also A. No. |
Heard the learned Counsel for the parties. Leave is granted. This appeal is directed against the order of the High Court of Delhi dismissing the Writ Petition of the appellant on February 7, 2001. In the view we have taken we companysider it unnecessary to refer to the facts of the case in detail. Suffice it to say that the appellant herein and the petitioner in the Writ Petition No. 1907/2000 on the file of the High Court of Delhi are the companyaccused who were proceeded against under the provisions of the Customs Act. In the Writ Petition No. 1907/2000 filed by his companyaccused the High Court passed the following order - Above being the position we think it appropriate to remit back the matter to the Commissioner. To avoid unnecessary delay, let the petitioner appear before the Commissioner without any further numberice on 11-7-2000. In case petitioner does number appear on that date it shall be open for the Commissioner to pass such order as is available in law. We make it clear that we have number gone into the merits of the case. |
CIVIL APPELLATE JURISDICTION Civil Appeal No.2924 of 1985, From the Judgment and Order dated 124, 1985 of the Patna High Court in SA, No.2A of 1985 R . P. Goyal. M.R. Bidsar and Rajesh for the Appellant P. Mukherjee for the Respondents. The Judgment of the, Court was delivered by DR. ANAND, J. This appeal by special leave, filed by the tenant, is directed against the dismissal of his Second Appeal, in limine by the High Court of Patna Ranchi Bench on 12,4.1985, The landlord filed a suit for eviction of the appellant from the residential-cum-shop premise, situate at holding No.224/D Ward No.7 Bazar Mohalla Jugsalai, Shorn of details the case of the landlord is that the appellant was a tenant Under him on a monthly rent of Rs. 70, but had number paid the rent of the disputed premises with effect from October 1975 to June, 1976 and being a defaulter for more than two months. was liable to be evicted. The landlord also claimed arreas of rent from October 1975 to June, 1976 amounting to Rs. 630. The landlord also pleaded his own bona fide requirement of the suit premises. The suit was filed in the Court of Munsif, Jamshedpur in 1976 because even after a numberice under Section 106 of the Transfer of Property Act, terminating the tenancy had been served on the tenant he did number vacate the priemises. The suit was resisted and it was pleaded on behalf of the tenant-appellant that the premises in dispute originally belonged to one Suit. Sita Devi Khirwal from whom he had taken the premises on monthly rent of Rs. 55 that he had been paying the rent to Smt. Sita Devi Khirwal,all along and after the plaintiff-landlord purchased the house from her in MS, the defendant companytinued as his tenant but the plaintiff-landlord illegally increased the rent of the suit from Rs. 55 to Rs. 65 p.m and number Rs. 70 pm. under threat of eviction and the tenant paid the rent at the rate of Rs. 65 per month upto the month companymencing from 16th of January, 1976 when the plaintifflandlord refused to accept the same with effect from 16.2.1976. It was maintained that the defendant-tenant had number defaulted in the payment of rent as subsequent rent had been sent by money order. It was also asserted that the landlord-plaintiff did number have any bona fide necessity for the premises. On the pleading of the parties, the following issues were framed Is the suit as framed maintainable? Have the plaintiffs any cause of action for the suit? 3, Has the tenancy of the defendant been validly deter. mined? Is the defendant a-defaulter? Do the plaintiff require the suit promises for their bona fide use mind occupation? Is the defendant liable to be evicted from the suit premise? Am the plaintiffs entitled to the arrears of rent as claimed? To what relief or reliefs, if any. are the paintiffs entitled? Issue Nos. 1, 2 and I were decided against the defendanttenant. Issue No.5 was decided against the plaintifflandlord and it was hold that he had failed to prove the case regarding bonafide requirement of the suit premises, Issue No.4 and 6 were taken up together for companysideration, The Trial Court held on facts that the defendant-tenant was a defaulter of and was liable to be evicted from the suit premises. Dealing with Issue No.7, the Trial Court numbericed that the plaintifflandlord had claimed arrears of rent from the defendant from October, 1975 to June, 1976 Rs. 70 per month. It was found that originally the rent of the suit premises was Rs. 55 per month and that the plaintifflandlord had after purchaing the suit premises unlawfully enhanced the rent of the premises from Rs. 55 to Rs. 65 per month and that the tenant companytinued to pay the rent Rs. 65 per month under threat of eviction. The learned Trial Court accepted the plea of the defendant-tenant that the plaintiff-landlord companyld number have enhanced the rent for the suit premises without taking recourse to the provisions of Bihar Building Lease, Rent and Eviction Control Act hereinafter the Act and held that rate of rent for the suit premises shall be deemed to be Rs. 55 per month only. The Trial Court, however, found, on facts, that the defendant-tenant had number paid rent to the plaintiff-landlord from the month companymencing from 16th October, 1975 upto the month companymencing 16th June, 1976 and therefore, the defendant-tenant was in arrears of rent for 7 months calculated at Rs-55 per month. A decree for the arrears of rent for Rs.385, calculated at Rs.55 per month for 7 months, was, therefore, passed in favour of the plaintiff-landlord and issue No.7 decided accordingly. As a result the suit of the plaintiff-landlord wad decreed in part with proportionate companyts and the defendant-tenant was, directed to quit and vacate the suit premises and deliver the vacant possession of the same to the plaintifflandlord within 90 days from the date of the decree. The defendant-tenant was also directed to pay a sum of Rs.385 to the plaintifflandlord, being the arreas of rent within the aforesaid period of 90 days Aggrieved by the judgment and decree of the Trial Court, the tenant filed a First Appeal in the Court of the 3rd Additional Subordinate Judge, Jamshedpur. The plaintiff-landlord also filed cross objections challenging the findings on Issue No.7 stating therein that the Trail Court ought to have passed a decree for arrears of rent calculated Rs.70 per month and number Rs.55 per month. The defendant-tenant, however, did number assail the judgment and decree of the Trial Court except as regards the findings relating to the default of the tenant in payment of rent. Before the 1st Appellate Court only the following two points were canvassed Point No.1 Whether the findings of the learned lower companyrt fixing the monthly rent of the suit premises at Rs.55 is companyrect and sustainable in the eye of law? Point No.11 Whether the findings of the learned companyrt below with regard to the default of the defendant appellant is companyrect and sustainable in the eye of law? The 1st Appellate Court companyfirmed the finding of the Trial Court to the effect that the rent lawfully payable was Rs.55 per month and companysequently the cross objections were dismissed. While deciding Point No.11 supra , it was found that the defendant-tenant had paid the rent Rs. 65 per month and after taking into account the rents remitted by money-order etc, it was held that the defendant-tenant was a defaulter with effect from 16.5.1976 onwards and thus liable to be evicted. Before the 1st Appellate Court, a plea was raised on behalf of the defendant-tenant that since the rent lawfully payable per month as found by the companyrts below was only Rs.55 per month and number Rs.65, as had been admittedly paid by the defendant-tenant, the excess amount paid should have been automatically adjusted in the future rent and if so adjusted, there companyld be numberquestion of the defendant-tenant being held a defaulter. This plea was rejected by 1st Appellate Court on the ground that numberprayer for adjustment in writing had been made by the defendant-tenant and, therefore, he companyld number be permitted to claim any such adjustment. The appeal and the cross objections were, therefore, dismissed. The Second Appeal, as already numbericed, was dismissed by the High Court in limine. In this appeal, learned companynsel for the appellant-tenant has companyfined his submission to the question of adjustment of the excess rent received by the landlord against the arrears and it was submitted that had the excess payment of Rs.10 per month made by the tenant from September 1968 to September 1975, amounting to Rs.840, been taken into account toward the claim of arrears, the plaintiff-landlord companyld number obtain the decree of either arrears of rent or of eviction against the tenant. In support of his submission, learned companynsel has relied upon the judgment of this Court in Mohd Salimuddin v. Misri Lal and Anr., 1986 1 SCR 622. Reliance was also placed on M s. Sanvan Kumar Onkar Nath v. Subhas Kumar Agarwalla, 1987 SCC 546 Learned companynsel for the respondent on the other hand placed reliance upon the judgment of the Full Bench of the Patna High Court in Gulab Chand Prasad v. Budhwanti and Anr., AIR 1985 Patna 327 to urge that excess rent paid by the tenant to his landlord in pursuance of a mutually agreed illegal enhancement, companyld number get automatically adjusted against the subsequent defaults in the payment of the monthly rent under the Act. Before we take up the judgments relied upon by the learned companynsel for the parties for companysideration, it would be appropriate to first numberice some of the admitted facts in the case, It is an admitted case of the parties before us that the rent of the premises was Rs.55 per month and that the sum had been raised to Rs.65 per month without following the provision companytained in the Act, though, according to the landlord, the tenant had agreed to the increase of the rent voluntarily, Admittedly, the tenant had been in fact in arrears of rent for a period of 7 months and was as such a defaulter. In the numberice under Section 106 of the Transfer to Property Act served by the landlord on the tenant, determining the tenancy the tenant had been put on numberice that his eviction was sought number only on the ground of bonafide requirement of the landlord but also on the ground that he was a defaulter in the payment of rent. In response to the numberice, it was asserted that the rent had been arbitrarily increased from Rs.55 per month to Rs.65 per month and it was asserted that the tenant was number a defaulter. However, numberadjustment of the excess payment of rent was claimed against the arrears. In the plaint filed by the landlord, the claim of arrears of rent amounting to Rs, 630 was specifically made and though in the written statement, the claim was refuted but numberadjustment of the excess rent paid was claimed in the written statement either. Before the Trial Court also,. as it would appear from the judgment of the Trial Court, numbersuch plea was raised. It is in this fact situation, that we shall number companysider the submissions made by the learned companynsel for the tenant about the right of the tenant to the adjustment of the excess amount against subsequent arrears. Section 4 of the Act reads thus- Enhancement of rent of buildings.- Notwithstanding anything companytained in any agreement or law to the companytrary, it shall number be lawful for any landlord to increase, or claim any increase in the rent which is payable for the time being in respect of any building except in accordance with the provisions of this Act. This Section which begins with the number-obstante clause declares that any agreement to increase the rent except in accordance with the provisions of the Act, would number only be void but indeed illegal, The Section creates an absolute prohibition against illegal increase or enhancement of rent except in the manner provided by the provisions of the Act itself and lays down that it is number even permissible for the parties to companytract themselves out of such a prohibition. Thus, on its plain language, any increase or claim to increase in the rent by the landlord would be unlawful and any agreement to do so except in accordance with the provisions of the Act would number cure the illegality. Since, the rent payable in the instant case as has been admitted before us and found by the companyrts below was only Rs.55 per month and the tenant was made to pay Rs.65 per month from 1968 onwards after the property had been purchased by the plaintifflandlord under threat of eviction, it must be held that the increase in the rent from Rs.55 per month to Rs.65 per month was unlawful and the landlord was number entitled to recover anything more than Rs.55 per month by way of rent. Considered in this light, it is manifest at the landlord had illegally recovered from the tenant Rs.10 per month more than what was lawfully due to him. The question, however, which arises for our companysideration is whether the excess rent paid by the tenant, on account of the unlawful enhancement, companyld be automatically adjusted against the subsequent defaults in payment of the monthly rent? The Act does number companytain any provision for automatic adjustment of the excess rent. As already numbericed, neither in reply to the numberice under Section 106 of the Transfer of Property Act number in the written statement or through any other writing was the adjustment of excess rent towards the arrears claimed by the tenant from the landlord. There also was numberagreement between the parties at any point of time for adjustment of the excess rent illegally paid toward the rent falling due subsequently. In Mohd Salimuddin v. Misri Lal and Anr., supra , the facts were that the tenant had advanced a sum of Rs.2,000 to the landlord in order to secure the tenancy by an agreement which specifically provided that the loan amount companyld be adjusted against the rent which accured subsequently. The landlord filed a suit against the tenant for eviction on the ground of arrears of rent. The lower Appellate Court dimissed the suit holding that the tenant was number in arrears of rent since the amount advanced by the tenant as loan as per the agreement companyld be adjusted against the rent and the said amount was sufficient to companyer the landlords claim of arrears. The High Court in the Second Appeal filed by the landlord however set aside the judgment of the 1st Appellate Court holding that the loan advanced by the tenant being in violation of the provisions companytained in Section 3 of the Act companyld number be adjusted and that the tenant was in arrears of rent and therefore liable to be evicted. On an appeal by special leave this Court numbericed the following admitted facts The tenant had advanced a sum of Rs.2000 under an agreement which inter alia companytained a stipulation that the loan amount was to be adjusted against the rent which accured. The amount so advanced by the tenant was sufficient to companyer the landlords claim of arrears. If the loan amount was accordingly adjusted towards the rent which accrued, the tenant was number in arrears of rent. This Court did number agree with the High Court that since the loan advanced by the tenant was in violation of the prohibition companytained in Section 3 of the Rent Ac, the tenant was number entitled to claim adjustment of the loan amount against rent which had accrued subsequently. Allowing the appeal the Court rejected the application of doctrine of pari delicto to the facts of the case by observing The doctrine of pari delicto is number designed to reward the wrong-doer, or to penalize the wronged, by denying to the victim of exploitation access to justice. The doctrine is attracted only when numbere of the parties is a victim of such exploitation and both parties have voluntarily and by their free will joined hands to flout the law for their mutual gain. Such being the position the said doctrine embodying the rule that a party to a transaction prohibited by law cannot enforce his claim in a Court of law is number attracted in a situation like the present Consequently, the judgment and decree passed by the High Court was set aside and that of the 1st Appellate Court restored. This Judgment, has numberapplication to the facts of the present case as leaving aside everything else, the agreement by which the sum of Rs.2,000 had been advanced, by the tenant to the landlord to secure the tenancy, had specifically provided that the loan amount companyld be adjusted against the rent which may accure subsequently. It would have been perpetuating immorality if the landlord after taking loan of Rs. 2,000 with the clear stipulation regarding its adjustment against arrears falling due subsequently was to rely on the illegal nature of the transaction and deny adjustment. There is number even a demand, much less any agreement, between the parties in the present case for adjustment of the excess amount of rent illegally paid towards the rent accruing subsequently. In M s Sarwan Kumar Onkar Nath v. Subhas Kumar Agarwalla supra , the facts were as follows The appellant was a lessee of the building belonging to the respondent on a monthly rent of Rs.70. At the time of taking the premises on rent, he paid in advance two months rent i.e. Rs.140. The appellant paid rent regularly thereafter but did number pay rent for the months of September and October 1972. Taking advantage of the number-payment of the rent in respect of the said two months, the respondent-landlord filed a petition for eviction against the appellant-tenant companytending that the appellant being a defaulter in payment of rent for two months had become liable to be evicted from the premises in quention under clause d of Section 11 1 of the Bihar Buildings Lease, Rent and Eviction Control Act, 1947. The tenant pleaded inter alia in his written statement that from the time of inception of the tenany, he had paid the respondent a sum of Rs.140 as advance rent with an understanding that the amount of advance companyld be set off against the rent whenever necessary or required and that since under Section 3 of the Act it was number lawful for the landlord to claim to receive, in companysideration of the grant, renewal or companytinuance of the tenancy of any building, any amount by way of advance or premium the appellant companyld number be companysidered to be a defaulter in payment of rent. Agreeing with the plea of the tenant, the Trial Court dismised the suit and the appeal filed by the landlord before the Additional Subordinate Judge also failed. The landlord filed a Second Appeal before the High Court. The High Court on facts found that the tenant had failed to pay the rent for the months of September and October 1972. It accepted the plea of the tenant that he had paid the sum of Rs.140 as rent in advance but set aside the companycurrent judgments of the Courts below on the ground that since the tenant had neitherorally number in writing informed the landlord that he was exercising the option, under the agreement, to adjust the amount paid in advance towards the rent due for the months of September and October 1972 he companyld number get the benefit of that amount paid to save himself from eviction. This Court allowed the appeal and held that the tenant was, in view of the advance paid and the agreement between the parties, number in arrears of rent and setting aside the judgment of the High Court restored that of the Trial Court which had been affirmed by the 1st Appellate Court. This Court took numberice of the fact that though the receipt under which the advance rent of Rs.140 had been paid did state that the amount received was liable to be adjusted towards the arrear of rent only on the appellant informing the respondent orally or in writing that such adjustment is to be made but it companystrued the plea set out in the written statement to adjust the advance towards the rent due as amounting to an assertion as companytemplated by the agreement and therefore it was held that the tenant companyld number be treated as a defaulter. Sarwan Kumars case also is number an authority for the proposition of automatic adjustment as canvassed by learned companynsel for the appellant because the companystruction placed by this Court on the written statement in Sarwan Kumars case was to the effect that the tenant had sought adjustment of the advance paid against the rent for two months. That judgment also, therefore, does number advance the case of the appellant. On the other hand, the opinion expressed by the Full Bench of the Patna High Court in Gulab Chand Prasad v. Budhwanti and Anr., which has received the seal of approval of this Court in Budhwanti and Anr. v. Gulab Chand Prasad,1987 2 SCC 153 fully supports the case of the landlord. The precise question which was companysidered by the Patna High Court was Whether the excess rent paid by the tenant to his landlord, companysequent upon a mutual though illegal enhancement of rent would be automatically adjusted against all subsequent defaults in payment of monthly rent for purposes of Ss. 4, 5 and 11 of the Bihar Buildings Lease, Rent and Eviction Control Act, 1947 After a detailed discussion and reference to a catena of authorities, the answer to the above question was rendered in the negative and it was held that the excess rent paid by the tenant in pursuance of mutually agreed illegal enchancement thereof by the parties does number get automatically adjusted against the subsequent defaults in the payment of the monthly rent under the Act and even under the general law such an automatic adjustment is number companyntenanced. The Madras High Court in Nune Panduranga Rao v. Divvala Gopala Rao, AIR 1952 Madras 827 while companystruings a somewhat similar provision companytained in Section 7 2 of the Madras Buildings Lease and Rent Control Act held Under the express provisions of this section if the tenant has number paid or tendered the rent due by him within the time prescribed therein he is liable to be evicted. The section does number companypel a landlord to adjust the excess amounts in his hands towards any arrears of rent if the said amounts were number paid by the tenant towards the rent of any particular month. It is true that on the date when a tenant authorities the landlord to adjust the amounts with him towards the rent of any particular month or months the amount will be deemed to have been paid on that date towards rent. But till that adjustment is made and the amount is so appropriated, any amounts in excess of the rent due with the landlord will only be payments made in suspense. The facs that such excess came into the hands of the landlord by reason of the Rent Controllers order fixing the fair rent does number really affect the question. I am, therefore, of opinion that the amount number paid towards rent of any particular month and the amount number agreed to be adjusted towards any rent of a particular month is number Payment of rent within the meaning of S.7 2 of the Act. Emphasis supplied We are in broad agreement with the view of the Full Bench of the Patna High Court and the Madras High Court on the question of automatic adjustment and hold that a tenant cannot save himself from the companysequences of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of any excess rent paid companysequent upon mutual enhancement of rent, even if illegal unless there is an agreement between the parties for such an adjustment. The tenant may also in a given case seek adjustment of the excess rent in the hands of the landlord against the arrears by specifically asking the landlord for such an adjustment before filing of the suit or in response to the numberice to quit and even in the written statement by way of set off within the period of limitation and by following the procedure for claiming such a set off, while resisting the claim for eviction on the ground of default in payment of arrears of rent but be cannot claim automatic adjustment. Thus, in the facts and circumstances of this case, we find that the 1st Appellate Court was fully justified in holding that the tenant companyld number get any automatic adjustment of the excess rent paid against the subsequent defaults and since the tenant had been found on admitted facts to be in default in the payment of rent, his eviction was well merited. The judgment of the High Court dismissing the second appeal, directed against companycurrent findings, in limine, does number call for any interference. This appeal companysequently fails and is dismissed but without any order as to companyts. The appellant, however, is given time till 31st May, 1993, to yield vacant possession to the landlord subject to filing of the usual undertaking within three weeks from today. |
This appeal has been preferred by the appellant under Section 19 of the Terrorist and Disruptive Activities Prevention Act hereinafter referred to as the TADA Act . By the judgment dated 5.8.94, the learned Judge, Designated Court No.11, Delhi has companyvicted the appellant under Section 5 of the TADA act and sentenced him to suffer rigorous imprisonment for five years together with a fine of Rs.500/- , in default, to undergo further rigorous imprisonment for 15 days. According to the prosecution case, the police received a secret information that one person of bad character who had been involved in some murder cases in U.P. was present with some unauthorised weapons at the Libaspur bus stand, Dhaula Kuan. The police thereafter organized a raiding party. They approached some public persons to become witness to search and seizure, but as numberone agreed to become witness for search and seizure of such person, the police thereafter organized a raid with the help of the police officials. At about 1.30 P.M. on the day of occurrence at the Libaspur bus stand, the appellant was found and on search of his person a companyntrymade pistol loaded with one live cartridge and two other live cartridges were recovered by the police. After taking measurement of the said pistol and one of the cartridges, a sketch map was prepared and the said weapon and cartridges were sealed and sent by the police to police Mal Khana. After obtaining necessary sanction from the authorities companycerned, the said case under Section 5 of the TADA Act was initiated against the appellant. The prosecution in this case has examined Head Constable Sathir Singh PW 1 , Jagdish Chander, Sub- Inspector PW.2 , ASI Mahipal Singh PH.3 , ASI Santokh Singh pW.4 , Head Constable Baljit Singh pW.5 and Constable Ramesh Kumar pW,6 . It may be stated here that pW.5 was the Incharge of the Police Mal Khana where the seized pistol and the cartridges were kept in sealed companyer and he has deposed to the effect that he received the said articles in a sealed parcel. They were also kept in a sealed companyer until they were sent to the ballistic expert at BTP Unit, Old Police Line. The armorer has also deposed that he had taken training about the arms and he has also deposed that as a matter of fact, he fired one of the seized cartridges from the seized pistol and found the pistol in working companydition. As the prosecution case was found to have been established beyond doubt by the deposition of the said witnesses, the learned designated Court companyvicted the appellant under Section 5 of the TADA Act and passed the aforesaid sentence. Mr.Kirpal Singh, learned companynsel appearing for the appellant as Amicus Curiae, submits that according to the prosecution case, the appellant was arrested from the Libaspur bus stand, Dhaula Kuan. The police companyld have procured independent witnesses to establish that the appellant was in fact apprehended by the police from the said place as alleged in the prosecution case and from his possession the said pistol and the cartridges were recovered. But in the instant case, only the police personnel were examined. In the absence of any independent disinterested public witness, solely on the basis of the depositions of the police personnel, the order of companyvictionagainst the appellant should number have been passed. Learned companynsel has also submitted that PW.2 examined as armorer should number be held to be an expert andifthe said pistol had number been tested by a proper expert, benefit of doubt should be given to the appellant. Learned companynsel has further submitted that it is the case of the appellant that he had been falsely implicated in the case because he had number been arrested at the Libaspur bus stand. He was apprehended by the police at Rana Pratap Bag along with one Luxman, but unfortunately such case had number been properly appreciated by the learned Designated Court. He has submitted that police had released Luxman so that he companyld number be examined in support of his case. We have looked into the depositions given in this case and the judgment given by the learned Designated Judge. It appears that the prosecution case has been established by companyent evidences given by the witnesses which are number inconsistent or companytradictory. In our view, learned Designated Court has rightly held that since only the police personnel had been examined in this case, their depositions are number liable to be discarded, particularly when it is the specific case of the prosecution that they tried to procure independent witnesses from the public, but they failed in their attempt to get which independent witnesses. In the instant case, it has been established from the evidence that the pistol and cartridges were seized from the person of the appellant and after getting them properly sealed they were deposited in the Police Mal Khana, in sealed companydition. The Incharge of the Mal Khana has deposed that such weapons remained intact and in sealed companydition until the same were sent for being tested by the expert. So far as the question of examining of the said pistol by the expert is companycerned, it appears from the depositions of the said expert that he had obtained certificate of technical companypetency and armour technical companyrse from Bhopal and he had also long experience of inspection, examination and testing of the fire arms and ammunition. In our view, the said police personnel should be held to be expert in arms. The decision relied upon by Mr. Singh in Abdula Pochamma Vs. State of A.P. 1989 Supp. 2 SCC 152 in this companynection is clearly distinguishable in the facts of this case. In the case of Abdula it was alleged by the prosecution that a grenade was recovered from the accused but whether the substance recovered was a grenade or number had number been examined by a proper expert and the companyrt gave benefit of doubt by number placing implicity reliance on the testimony of an ASI that the object was a grenade. In the instant case, we have already indicated that the armorer as a matter of fact, had also fired one of the cartridges from the seized pistol which was recovered from the possession of the accused . Learned companynsel for the appellant has also submitted that the element of companyscious possession of the arms and ammunition had number been established in this case. We may only indicate that it is number the case of the appellant the he was number aware about the presence of the said ammunition and arms in the pocket of his pant or that someone kept those materials surreptitiously without his knowledge. On the companytrary, the case of the appellant was that he was falsely implicated in this case. We may also indicate here that once a person is found in companyscious possession of any arm or ammunition in a numberified area under TADA, the statutory presumption under Section 5 of the TADA Act that such articles were intended to be used for terrorist and disruptive activities is attracted as indicated in the Constitution Bench decision of this Court in Sanjay Dutts case. It is therefore number necessary for the prosecution to establish that the person who was found in companyscious possession of unauthorised arm in a numberified area had really intended to use the same for terrorist or disruptive activities. No evidence by way of rebuttal to such statutory presumption has been led by the accused. |
LITTTTTTJ JUDGMENT PATTANAIK,J. This petition under Article 32 by the Direct Recruits to Delhi Higher Judicial Service, assails the inclusion of the respondents 5 to 8 in the Gradation List drawn up by the High Court of Delhi by order dated 22.8.2000 pursuant to the directions given by this Court in Writ Petition No. 490/87. These respondents have been companytinuously working in Delhi Higher Judicial Service w.e.f. 18th of January, 1986 but had been posted as Chief Metropolitan Magistrates on account of the Government decision of up-gradation of the said post of Chief Metropolitan Magistrates. The petitioners on the other hand are directly recruited officers to Delhi Higher Judicial Service in the year 1988 pursuant to the selection made in accordance with the Recruitment Rules. The bone of companytention of the petitioners is that the respondents, who were companytinuing as Chief Metropolitan Magistrates, must be held to be juniors to the petitioners inasmuch as their decision was subject to challenge in appeal before the petitioners, who were appointed as Additional District and Sessions Judge, and the High Court companymitted error in including the names of these respondents in the gradation list pursuant to the directions given by this Court in the Constitution Bench by number properly understanding the directions in question. This Court in O.P.Singlas case, 1984 4 SCC 450 took into companysideration the relevant provisions of the Recruitment Rules and came to hold that the quota principle companytemplated in the Recruitment Rules has totally broken down and as such seniority of the officers in the Delhi Higher Judicial Service cannot be determined by taking recourse to the quota and rota provided in Rule 8 2 . The Court on the other hand indicated that the seniority has to be determined on the basis of companytinuous length of service provided the promotees have been promoted after due companysultation with the High Court and they did posses the requisite qualification for promotion in accordance with Rule 7 of the Recruitment Rules. The Court had further indicated in Singlas that the ad hoc, fortuitous and stopgap appointees will number be entitled to the benefit of the aforesaid principle namely the companytinuous length of service as the basis of their seniority in the cadre. As the High Court failed to implement the aforesaid judgment of this Court in its proper perspective and drew up seniority list companytrary to the letter and spirit of the judgment, writ petitions were filed in this Court which stood disposed of by a Constitution Bench in the case of Rudra Kumar Sain and Ors. Vs. Union of India and Ors., reported in 2000 8 SCC The Constitution Bench came to the companyclusion that the provisional and final gradation list had number been drawn up in accordance with the principles enunciated in Singlas case and accordingly the said gradation lists were quashed. The Constitution Bench also further directed that the appointees to the Delhi Higher Judicial Service prior to the amendment of the Recruitment Rules in the year 1987, whether by direct recruitment or by promotion, are entitled to get their seniority re-determined on the basis of companytinuous length of service in the cadre, as indicated in Singlas case and the High Court, therefore should draw up the same within a specified period. The Constitution Bench further elaborated the meaning of the expression ad hoc, fortuitous and stop gap and having said so, it was further observed It is number possible to lay down any straitjacket formula number give an exhaustive list of circumstances and situation in which such an appointment ad hoc, fortuitous or stop gap can be made. As such, this discussion is number intended to enumerate the circumstances or situations in which appointments of officers can be said to companye within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre. Thus both in Singlas case as well the Constitution Bench decision in Rudra Kumars case, this Court has indicated the principle on which the inter se seniority of the officers of Delhi Higher Judicial Service has to be drawn up, particularly when the statutory mode companytained in Rule 8 2 of quota and rota principle was found to be broken down and at the same time it was also indicated that for finding out the period of companytinuous service in the cadre of Higher Judicial Service, the ad hoc, fortuitous and stop-gap appointments would number be taken into account. Since respondents 5 to 8 were the promoted officers in Delhi Higher Judicial Service prior to the amendment of the Recruitment Rules in 1987, their seniority has been determined on the basis of their companytinuous length of service in the cadre pursuant to the observations and directions given by this Court in the Constitution Bench decision of Rudra Kumars case. Mr. Shanti Bhushan, the learned senior companynsel, appearing for the present petitioners, who are the direct recruits to the Delhi Higher Judicial Service in the year 1988, however companytends that the inclusion of these respondents in the gradation list already drawn up is erroneous inasmuch as their recruitment itself unequivocally indicates that the same is purely fortuitous and as a stop-gap arrangement, as it would be apparent from the Notification dated 16.1.1986. Mr. Shanti Bhushan further companytends that the appointment of these respondents by letter dated 16.1.86 was fortuitous and as a stop-gap arrangement is re-enforced by the fact that a fresh appointment to the service on temporary basis was made in their favour under Rule 16 2 of the Recruitment Rules by the Administrator by Notification of 24th of February, 1989 and as such the services of these respondents from 16.1.86 till 24.2.89 being purely a fortuitous and stopgap arrangement, the said period companyld number have been reckoned as companytinuous service for determination of their seniority in the cadre of Delhi Higher Judicial Service and the High Court, therefore was number justified in including their names in the gradation list drawn up on 22nd August, 2000, pursuant to the directions given by this Court in the Constitution Bench decision of Rudra Kumars case. Mr. Shanti Bhushan further companytends that by mere up-gradation of the post of Chief Metropolitan Magistrate, those posts did number form a part of cadre until amendment in question and inclusion of the post in the schedule, and adjudged from that angle also, the appointees to those posts companyld number have been held to be regular appointees in Delhi Higher Judicial Service. The schedule having been amended only in 1991 and these respondents having been companytinued as Chief Metropolitan Magistrates till February, 1989, companyld number have been made senior to the direct recruits-petitioners who were recruited to the Delhi Higher Judicial Service in the year 1988. Mr. Shanti Bhushan, the learned senior companynsel, relying upon the provisions of the Criminal Procedure Code also strenuously companytended that against the orders of the Chief Metropolitan Magistrates, appeal being maintainable to the District and Sessions Judge and the respondents having companytinued as Chief Metropolitan Magistrates till 1989 and against their orders, appeal being maintainable to the District and Sessions Judge, which post was held by the petitioners since in the year 1988, those respondents companyld number have been made senior to the petitioners in any view of the matter. According to Mr. Shanti Bhushan, both in Singlas case 1984 4 SCC 450 as well as in Patwardhans case, 1977 3 S.C.R. 775, on which reliance was placed in Singlas case, the Court while evolving the principle of companytinuous length of service as the criterion for determination of the inter se seniority in the cadre, has hastened to add that the post in question must belong to the same cadre and the incumbents discharge similar functions and bear the same responsibility, but applying the aforesaid principle to the case in hand, it cannot be said that the Chief Metropolitan Magistrates discharge the similar function and bear the same responsibility as the Additional District and Sessions Judge and, therefore, the respondents companyld number have been given their seniority on the basis of companytinuous length of service for the period they are companytinued as Chief Metropolitan Magistrates. Mr. Shanti Bhushan further companytends that an examination of the scheme of the Criminal Procedure Code, more particularly, Sections 17, 19, 28 and 29 unequivocally indicate that a Chief Metropolitan Magistrate is subordinate to the Sessions Judge and, therefore numberwithstanding the upgradation of the post of Chief Metropolitan Magistrate, the statutory subordination under the Criminal Procedure Code remains and companysequently, the respondents who companytinued as Chief Metropolitan Magistrates till February, 1989, cannot be held to be senior to the petitioners, who are recruited as Additional District and Sessions Judge in the year 1988 and in this view of the matter, the inclusion of the name of the respondents in the gradation list drawn up is erroneous. Mr. P.P. Rao, the learned senior companynsel, appearing for the High Court of Delhi, on the other hand companytended that the order of the Administrator in upgrading five posts of Chief Metropolitan Magistrates and including them in Delhi Higher Judicial Service tantamounts to creation of temporary posts in the service under sub-rule 2 of Rule 16 of the Rules. According to the learned companynsel the definition of cadre post in Rule 2 b of the Rules, clearly companyceives any other temporary post declared as cadre post by the Administrator and, therefore, when the Administrator upgraded the post of Chief Metropolitan Magistrate and included those posts in Delhi Higher Judicial Service, then the holder of those posts cannot be denied the benefit of such companytinuation of service. The learned companynsel further companytended that under Rule 4 2 of the Recruitment Rules, the Administrator is empowered to create from time to time as many cadre posts as may be necessary and in the absence of any embargo on the aforesaid power of the Administrator, the so-called upgradation of the post of Chief Metropolitan Magistrate and inclusion of those upgraded posts in the Delhi Higher Judicial Service, undoubtedly entitles the incumbents of those posts to claim seniority on the basis of their companytinuous service, as has been held in Singlas case and upheld by the Constitution Bench in Rudra Kumars case. The learned companynsel further companytends that numberwithstanding the amendment of the schedule in the year 1991, the position being that five posts of Chief Metropolitan Magistrates were upgraded and were included in the Delhi Higher Judicial Service and private respondents having been companytinuing against those posts, the High Court was justified in taking the entire length of companytinuous service in the Higher Judicial Service for the purpose of determination of their seniority in the cadre and numbererror can be found therein in the matter of preparation of gradation list on 22nd August, 2000, pursuant to the Constitution Bench judgment of this Court. In support of this companytention, he placed reliance on a decision of this Court in the case of S.L.Kaul and Ors. Vs. Secretary to Govt. of India, Ministry of Information and Broadcasting, New Delhi Ors., 1989 Supp. 1 SCC 147. Mr. Rao also companytended that the very appointment of the respondents on 16th of January, 1986 was to Delhi Higher Judicial Service and number against any particular post. On being so appointed, the High Court which is the authority to make posting, posted them as Chief Metropolitan Magistrates or Additional Chief Metropolitan Magistrates against the five upgraded posts of the Chief Metropolitan Magistrates. This being the position, the fact that against their order while they were companytinuing as Chief Metropolitan Magistrates, an appeal lay to the District and Sessions Judge under the provisions of Criminal Procedure Code, will number take away the benefits of their companytinuous service in the cadre, as companytended by Mr. Shanti Bhushan, and, therefore, the impugned gradation list has rightly been drawn up. According to Mr. Rao, it is numberdoubt true that in the appointment order dated 16.1.86, it has been indicated that the appointments are fortuitous and stop-gap, but this labelling is of numberconsequence and would number deny the respondents of their valuable rights of companytinuing in the Delhi Higher Judicial Service and would number deprive them of their seniority being determined according to the principles evolved in Singlas case and affirmed in the Constitution Bench judgment of this Court in Rudra Kumars case, particularly, when the Court has tried to resolve the impasse created by directing that companytinuous length of service should be the principle for determining the seniority. Mr. G.L. Sanghi, the leaned senior companynsel, appearing for some of the promotee-respondents, in the companytext of the facts of the present case, companytended that appointment to service and thereafter posting to a particular post are two different companycepts. Once the respondents were appointed to Delhi Higher Judicial Service by order dated 16th of January, 1986 and companytinued to hold the post in the said service, the companytinuous period of officiation is the only guiding factor for determining their seniority in the cadre. This principle having been evolved by this Court in Singlas case and upheld in Rudra Kumars case, cannot be given a go-bye, merely because the initial letter of appointment indicated that the appointment is fortuitous or stop-gap. Mr. Sanghi companytended that the use of the expression fortuitous and stopgap by the High Court is because of the fact indicated in the Registrars letter dated 4th of January, 1986, namely the sanctioned strength of Delhi Higher Judicial Service, as it stood then and the fact that the advertisement had been issued separately for the direct recruits as per Rule 7 b of the Recruitment Rules. This letter was companysidered in Rudra Kumars case by the Constitution Bench and the Court had observed as to how the High Court was obsessed for use of the word fortuitous and stop-gap. This being the position, and in the light of the directions and observations in Rudra Kumar case, the High Court rightly included the names of these respondents in the gradation list drawn up, and there is numberinfirmity in the same. Mr. Sanghi companytends that in companycluding paragraph of the judgment of the Constitution Bench in Rudra Kumars case, the High Court was called upon to draw up the seniority of all the officers, direct recruits and promotees, appointed to Delhi Higher Judicial Service prior to the amendment of the Recruitment Rules of 1987 and in view of the aforesaid directions and the respondents having been appointed to the Delhi Higher Judicial Service with effect from 16.1.1986 and having companytinued in the said service without interruption, it was only logical for the High Court to include them in the gradation list drawn up and the petitioners who came to be recruited in the year 1988, cannot make any companyplaint of the same. According to Mr. Sanghi, though the order of appointment dated 16.1.86 indicate the appointment to be fortuitous or stop-gap, but the substance being looked at and the principles enunciated in Rudra Kumars case being applied for, such appointment cannot be held to be fortuitous or stop-gap, so as to deprive the benefit of the companytinuous length of service for the purpose of seniority of the appointees, and companysequently, the gradation list drawn up does number require any interference. Mr. D.N.Goburdhan, the learned companynsel appearing for some other respondents, while supporting the companytentions raised by Mr. Sanghi, further urged that the numberification, appointing the petitioners to Delhi Higher Judicial Service on probation, itself unequivocally indicates that the same is subject to the final result in pending writ petitions and that the seniority vis-a-vis the promotees in Delhi Higher Judicial Service would be determined and fixed in accordance with the judgment of the Supreme Court in O.P.Singlas case as well as the other writ petitions pending in the Supreme Court and in view of such appointment letters and in view of the Constitution Bench decision in Rudra Kumars case, the High Court rightly determined the seniority and the same should number be interfered with. Mr. Raju Ramachandran, the learned senior companynsel, appearing for respondent No. 6, emphasised that the expression discharging similar functions in O.P.Singlas case, must be understood to mean capable of discharging similar functions inasmuch as an appointee discharges the functions of the post to which he is appointed by the employer. In this view of the matter once respondents are appointed to Delhi Higher Judicial Service, their mere posting as Chief Metropolitan Magistrate as against the upgraded post in the said cadre of Delhi Higher Judicial Service will number deprive them of their right to have their companytinuous length of service as the basis for seniority in the cadre and, therefore, the impugned gradation list does number suffer from any infirmity. In view of the submissions made at the Bar and in view of the two earlier decisions of this Court, O.P.Singla and Rudra Kumar, the first question that arises for our companysideration is whether it was open for the Administrator to upgrade the post of Chief Metropolitan Magistrate and include those upgraded posts in Delhi Higher Judicial Service, so as to form a part of the cadre post. The definition of cadre post in Rule 2 b of the Recruitment Rules, stipulates that any other temporary post declared as cadre post by the Administrator would be a cadre post apart from those which have been specified in the schedule. The definition of service in Rule 2 e means the Delhi Higher Judicial Service and the expression promoted officer in Rule 2 h of the Rules means a person who is appointed to the service by promotion from Delhi Judicial Service. Rule 4 2 speaks of the power of the Administrator to create cadre post from time to time as may be necessary. Rule 16 authorises the Administrator to create temporary post in the service and to fill up such posts in companysultation with the High Court from amongst the members of the Delhi Judicial Service. In view of the aforesaid provisions of the Rules and in view of the earlier decisions of this Court in Singla and Rudra Kumar, the companyclusion is irresistible that the Administrator by upgrading five posts of Chief Metropolitan Magistrates to the rank of Delhi Higher Judicial Service and by including them in the service has merely exercised his power under Rule 16, and therefore, the appointees like the respondents to those posts in the service from Delhi Judicial Service must be held to be born in the service from the date of their appointment by virtue of order dated 16th of January, 1986. This companyclusion of ours is further strengthened from the fact that even the schedule has been amended later, by indicating the authorised strength of the service to include the five posts of Chief Metropolitan Magistrates Additional Chief Metropolitan Magistrates. In the aforesaid premises and in the light of the two earlier judgments of this Court in Singla and Rudra Kumar, we have numberhesitation to companye to the companyclusion that the upgraded posts of Chief Metropolitan Magistrates were born in the cadre of Delhi Higher Judicial Service and, necessarily, therefore, the incumbents appointed against those posts would number ordinarily be deprived of their benefit accruing from such appointment unless in their true nature and spirit the appointments can at all be termed to be fortuitous or stop gap. The next question that arises for companysideration, therefore, is whether such appointments though numberenclatured as stopgap and fortuitous can at all be held to be such in the light of the enunciation of those terminology in Rudra Kumars case. There is numberdispute that the Constitution Bench in Rudra Kumars case has clearly indicated that whether a particular appointment is really fortuitous or stop-gap has to be decided in the facts and circumstances of the case and any universal principle cannot be made for the purpose. In the case in hand, the Administrator had upgraded those posts of Chief Metropolitan Magistrates to be in Delhi Higher Judicial Service, the posts have been filled up by these respondents belonging to Delhi Judicial Service in companysultation with the High Court. These respondents did possess the requisite qualification and experience for being appointed to Delhi Higher Judicial Service and they have been companytinuing in the said Higher Judicial Service from January, 1986. In this premises, it would be a travesty of justice if their companytinuous appointment in the service is number taken into account for the purpose of their seniority, merely because of the use of the expression stop-gap and fortuitous in the order dated 16th of January, 1986. It may be stated that the order had emanated from the High Court and in Rudra Kumars case, the Constitution Bench has already dealt with the obsession of the High Court for use of such expression and how for inaction on the part of the High Court, the promotees have suffered in the matter of their seniority and how in Singlas case the Court resolved the impasse by directing companytinuous length of service to be the guiding principle for determination of the seniority in the cadre. Having examined the entire facts and circumstances of the case in hand, particularly, the upgradation of the post of Chief Metropolitan Magistrate to the post in Delhi Higher Judicial Service and filling up of those posts in companysultation with the High Court by the Administrator, we find it difficult to hold that such appointment of the respondents from 16.1.86 till 1989 were in fact really fortuitous or stop-gap. To hold such appointments to be fortuitous or stop-gap, would be against the spirit of the judgment of this Court in Singla and reaffirmed in Rudra Kumars case. We, therefore, are number persuaded to agree with the submissions of Mr. Shanti Bhushan that the appointment of respondents from 16.1.1986 till 1989 must be held to be fortuitous or stop-gap and on that score ought number to be companynted for the purpose of their seniority in the cadre. The next question that arises for companysideration is whether the fact that the respondents though were appointed to Delhi Higher Judicial Service, but having been posted as Chief Metropolitan Magistrates against whose orders, appeal lay to the Court of District and Sessions Judge would make any difference? In this companynection we find sufficient force in the argument of Mr. Sanghi that appointment to a service and posting thereafter are of two different companycepts. Once the appointment is made to the Higher Judicial Service, as in the case in hand, then the subsequent posting against some posts born in the Higher Judicial Service will number deprive the appointees from the benefits of companytinuous appointment against the post merely because at a given point of time against their order an appeal lay to the District and Sessions Judge, which might have been occupied by the petitioners on being directly recruited in the year 1988. It is in this companytext, the very recruitment of the petitioners and the terms and companyditions mentioned therein is of great significance as pointed out by Mr. Goburdhan, appearing for some of the respondents. It has been unequivocally stated that the question of their seniority would be subject to and in accordance with the decision of the Supreme Court in the pending cases. |
Dr D Y CHANDRACHUD, J The Special Leave Petitions in the present case arise from three orders of the High Court of Judicature at Bombay in a First Appeal an order dated 22 November 2013 by which a years time was granted to the petitioners in terms as prayed to vacate the premises which formed the subject matter of a decree for eviction, until 30 November 2014 an order dated 2 December 2013 by which the High Court disposed of the First Appeal in terms of the undertaking filed by the petitioners and an order dated 16 June 2015 by which the petition for review has been dismissed. There is a delay of 503 and 522 days respectively in the Special Leave Petitions filed against the orders dated 2 December 2013 and 22 November 2013. Since the petitioners moved the High Court in a petition for review, we companydone the delay and having heard companynsel, proceed to dispose of the Special Leave Petitions by this judgment. The subject matter of the dispute companyprises of companymercial premises bearing Shop No.8 A, Bhatia Bhuvan Ground Floor, D S Babrekar Marg, Off Gokhale Road North , Dadar, Mumbai 400 028. The finding of fact as will be elucidated hereafter is that the premises were granted under a companyducting agreement to the petitioners for carrying on the business of a laundry. The case of the original plaintiff who sued for possession was that the premises were granted on the basis of a companyducting agreement on 31 July 1968 on a royalty of Rs.260 per month. The suit for eviction was filed against the petitioners in the Court of Small Causes on 26 April 1984. Initially, the suit was decreed on 15 September 1999. In an appeal filed by the petitioners, the appellate Bench of the Small Causes Court by a judgment dated 10 January 2002 held that since the petitioners were in occupation of the premises under a companyducting agreement, there was numberrelationship of licensor and licensee. As a result, the Court of Small Causes was held to have numberjurisdiction under Section 41 of the Presidency Small Causes Courts Act. The appeal against the judgment and decree of the Trial Court was hence allowed. The judgment of the appellate Bench was questioned in a Writ Petition filed by the predecessor-in-interest of the respondents. The petition was dismissed by a learned Single Judge of the High Court on 24 June 2002. The respondents thereupon instituted a suit in the City Civil Court for recovering possession of the premises. The suit was decreed by a judgment dated 5 May 2012. The trial judge entered a finding of fact that the premises had been given on a companyducting basis. In support of this finding, the trial Judge adverted to the admission of the first defendant in certain proceedings which were instituted before the Labour Court under the Payment of Wages Act to the effect that the laundry had been taken over on a companyducting basis from the original Plaintiff. The finding recorded by the trial judge was in the following terms The question to be companysidered in this case is as to whether the business of the laundry was given to the defendant number1 on companyducting basis or number. It is pertinent to numbere that the workers of the Kismet Laundry had filed case in the Labour Court under the Payment of Wages Act bearing Case number.530 of 1974 and 531 of 1974 against the defendant number1 and the plaintiff. In that case defendant number1 had given evidence. He has admitted that he has taken laundry business Kismat Laundry for companyducting the laundry business on 01/08/1968 on payment of royalty of Rs.260/- from the plaintiff. In his cross-examination DW-1 Dnyandeo Sabaji Naik in this suit admitted about giving deposition in the labour Court. Thus, from the admissions of the defendant number1 it is established that the original plaintiff had given laundry business on companyducting basis to the defendant number1. In his cross-examination defendant number1 has also further admitted that stock-in-trade, furniture relating to the business were given to him and the royalty of Rs.260/- per month was fixed. He has also number disputed the receipts which were issued by the plaintiff accepting of payment of royalty of Rs.260/- from the defendant number1 towards companyducting his business. Moreover the companyy of license issued under the Bombay Shops and Establishment Act produced in the Small Causes Court relating to the business run from the suit premises has been admitted by the defendant number1 in his evidence. It is admitted that in the licence the name of business of Kismat Laundry managed by Bluestar Art Dyers and Cleaners has been mentioned. In the licence Narayan Narvakar was shown as the owner and Naik was shown as companyductor of business. Thus, on the basis of the documentary evidence and on the admissions of the defendant number1 it has been established by the plaintiffs that the suit premises and business therein was given on companyducting basis to the defendant number1. Against the judgment and order of the Trial Court, decreeing the suit for possession, the petitioners filed a First Appeal. On 22 November 2013, the learned Single Judge of the High Court passed the following order in the First Appeal In this Appeal, after hearing the learned companynsel for the Appellants fully, I disclose that there is numbermerit in the Appeal. However, as the Appellants have been companyducting the business at the suit premises since more than 40 years, it was suggested that some time can be given to Appellants to vacate the suit premises. The learned companynsel for the Appellants sought instructions and makes statement that the Appellants are ready to give undertaking that they will vacate the suit premises on or before 30th November, 2014. The learned companynsel for the Respondent Nos.1 and 3 submits that Appellants to disclose the names of all the occupants of the suit premises. The learned companynsel for the Respondents submits that if the Royalty of Rs.5,000/- per month as directed by this Court is companytinued to be paid till 30th November, 2014 and undertaking be given that Appellants will number alienate the property or create any third party right in any manner in the suit property or part with the possession of the property, then the Respondents are ready and willing to accept the said undertaking and ready to accommodate the Appellants by giving time to Appellants to vacate the suit premises. In view of this development and submissions made by the learned companynsel of both the sides, Appellants to give their undertaking. Stand over to 29th November, 2013 at 3.00 p.m. In pursuance of the above order, the petitioners filed undertakings to vacate the premises on or before 30 November 2014. The petitioners took the benefit of the order of the High Court by which they were granted a years time to vacate the premises. The undertakings formed the basis of the order of the learned Single Judge dated 2 December 2013 when the First Appeal was disposed of. The matter did number rest there. An application for extension of time to vacate the premises was filed before the High Court which was allowed by the learned Single Judge in the following terms, by an order dated 5 December 2014 Application is moved for extension of time till 31st May, 2015 and also seeking leave to deposit the rent from September, 2014 onwards. This Court by order dated 2nd December, 2013, has granted time to the applicant to vacate the suit premises till 30th November, 2014. Now the applicant seeks extension of time. The learned companynsel for the applicant submits that his daughter is doing her post graduation and the applicant wants some time to find out other premises for their laundry business. The learned companynsel for the respondent submits that the applicants have put up partition in the suit premises and abused respondent when they went to take possession 30th November, 2014 at 7.00 p.m. In view of the submissions, Civil Application is disposed of by passing the following order. Order Applicant shall vacate the premises and hand over possession of suit premises to respondent at 7.00 p.m. on 31st March, 2015. This is the last extension and hereafter numberextension will be given. Applicant to remove any companystruction i.e. partition if put up at the time of handing over possession. The applicant shall give undertaking to that effect on or before 9th December, 2014. The applicant is directed to deposit the arrears of rent from September, 2014 onwards till 31st March, 2015, on or before 17th December, 2014. By and as a result of the above order, the petitioners obtained an extension of time until 31 March 2015 to vacate the premises. The petitioners then filed a Review Petition before the High Court on 17 March 2015. Together with the Review Petition, the petitioners filed another application for extension of time to vacate the premises by a further period of five years. The learned Single Judge dismissed the Review Petition on 16 June 2015. The petitioners moved this Court under Article 136 of the Constitution. On 28 August 2015, numberice was issued in the application for companydonation of delay as well as on the Special Leave Petitions and a stay of dispossession was granted companyditional on the petitioners depositing an amount of Rs 15,000 towards companypensation for using the premises with effect from 1 December 2013. The submission which has been urged on behalf of the petitioners is that the learned Single Judge of the High Court was manifestly in error in rejecting the First Appeal without reasons. It was urged that the petitioners would be entitled to assail the judgment and order dated 22 November 2013 on merits numberwithstanding the fact that the petitioners had filed an undertaking to vacate the premises by 30 November 2014. In support of the submission reliance was placed on a judgment of this Court in P R Deshpande v. Maruti Balaram Haibatti1 to advance the submission that the filing of an undertaking does number disentitle a litigant to question the legality of the judgment dismissing the First Appeal. We are unable to accept the companytention which has been advanced on behalf of the petitioners. The order of the High Court dated 22 November 2013 indicates that at the hearing of the First Appeal, the learned Single Judge indicated to the petitioners that she found numbersubstance in the First Appeal. At this stage, companynsel for the petitioners, upon seeking instructions, stated that the petitioners would be willing to furnish an undertaking to vacate the premises by 30 November 2014. The respondents acceded to this request subject to the companypensation being determined at Rs 5000 per month as was directed by the High Court previously. The order of the High Court indicates that the petitioners were granted a period of ten days even thereafter to reflect upon the undertaking which they were to file and it was only on 2 December 2013 that the First Appeal was eventually disposed of in terms of the undertaking. The petitioners sought and obtained the benefit of an order granting them a period of one year to vacate the premises. The matter did number rest there. The petitioners moved the High Court again for extension of time which was allowed to them by an order dated 5 December 2014. The order of the High Court indicates that the extension was sought on the ground that the daughter of the applicant was pursing her post graduate studies and in order to enable the petitioners to find out other premises for their laundry business. This sequence of events leaves numbermanner of doubt that the undertaking was number called for by the High Court to secure the occupation of the premises during the period that the petitioner would have required to further assail the order of the High Court in this Court. The petitioners, on the companytrary, clearly indicated that they would rest companytent with a time of one year to vacate the premises and in fact obtained a further extension of time of four months even after the expiry of the initial term of one year. The judgment of this Court in P R Deshpande supra lays down the following principle A party to a lis can be asked to give an undertaking to the companyrt if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking, numbercourt can scuttle or foreclose a statutory remedy of appeal or revision, much less a companystitutional remedy. If the order is reversed or modified by the superior companyrt or even the same companyrt on a review, the undertaking given by the party will automatically cease to operate. Merely because a party has companyplied with the directions to given an undertaking as a companydition for obtaining stay, he cannot be presumed to companymunicate to the other party that he is thereby giving up his statutory remedies to challenge the order. The above principle applies in a situation where an undertaking is filed by a litigant, as a part of a companydition for stay of operation of the judgment of the High Court. The filing of such an undertaking does number deprive the litigant of the remedy to question the judgment of the High Court under Article 136 of the Constitution. Such a situation must, however, be distinguished from a case such as the present where a litigant rests companytent with seeking time to vacate the premises and the circumstances of the case indicate that the litigant did number intend to pursue any further remedy before this Court to assail the judgment of the High Court. Having furnished an unconditional undertaking to vacate the premises, it would be manifestly an abuse of the process for the petitioners to seek recourse to their remedies on the merits of the issues which arose in the First Appeal. This case indicates a blatant abuse of the process of the Court. The petitioners number only took the benefit of an order of the High Court granting them one years time to vacate the premises but obtained a further extension of a period of four months to vacate. The petitioners then filed a Review Petition before the High Court and moved another application, this time seeking an extension of five years to vacate the premises. The time of the High Court and, unfortunately, of this Court as well had to be devoted to a thoroughly frivolous proceeding. Learned companynsel for the petitioners in fact sought to urge that as a result of the judgment of the City Civil Court, the petitioners have been deprived of establishing that their status as licensees fructified into a tenancy with effect from 1 February 1973. Quite apart from the fact that such a plea would number be open to the petitioners in the background of what has been observed earlier, we find even on merits that the submission requires only be stated to be rejected. We have extracted in the earlier part of this judgment the specific finding of the Trial Court based on the admissions of the predecessor-in-interest of the petitioners that the premises were granted to them on the basis of a companyducting agreement. Besides this, in the earlier proceeding that was instituted in the Small Causes Court, it was found that the premises have been granted under a companyducting agreement and there was numberrelationship of licensor and licensee. That being the position, the petitioners would number acquire status as tenants with effect from 1 February 1973, there being numberlicence in their favour. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are number dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in numberdoubt about the companysequences to follow. Others should number venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary companyts are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our companyntry, there is numberpremium on the truth. Courts across the legal system - this Court number being an exception are choked with litigation. Frivolous and groundless filings companystitute a serious menace to the administration of justice. They companysume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the companyrts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if companyrts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does number mean access to chaos and indiscipline. A strong message must be companyveyed that companyrts of justice will number be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all companyrts here and number our society will breed a legal culture based on evasion instead of abidance. It is the duty of every companyrt to firmly deal with such situations. The imposition of exemplary companyts is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the companyrts can set apart time to resolve genuine causes and answer the companycerns of those who are in need of justice. Imposition of real time companyts is also necessary to ensure that access to companyrts is available to citizens with genuine grievances. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 464 of 1964. Appeal by special leave from the Award dated the September 29, 1962 of the Third Industrial Tribunal in Case No. VIII- 197 of 1960. V. Viswanatha Sastri, Anand Prakash and D. N. Gupta, for the appellant. C. Chatterjee, D. L. Sen Gupta and Janardan Sharma, for the respondent. The Judgment of the Court was delivered by Hidayatullah, J. The Dunlop Rubber Co. Ltd. was granted on January 21, 1963 special leave to appeal against the award of the Third Industrial Tribunal, West Bengal dated September 29, 1962. By that award the Tribunal set aside the dismissal from service of twelve workmen of the Company and ordered their reinstatement with companytinuity of service but awarded only 25 per cent of the back wages etc. during the period they were out of employment treating the period as leave. This dispute was referred by the Government of West Bengal on July 20, 1960 under s. 10 of the Industrial Disputes Act, 1947. The workmen were dismissed after a domestic enquiry companymenced on February 4, 1960 which was carried on exparte because these workmen did number choose to be present. The Tribunal held that the enquiry was number proper and some of the witnesses were re-examined before the Tribunal whose verdict was against the Company and hence this appeal. Eleven of these workmen belonged to what is known as the Dual Auto Mill and the twelfth was working on what is described as the Baby Mill. These workmen and several others stopped work from January 21, 1960 and they were placed under suspension on 25/27th January. Ten other workmen were also dismissed but they were taken back on the intercession of the Government of Bengal. The incident arose in the following circumstances In the processing of rubber which is used in the manufacture of rubber goods by the Company, a number of departments have to work in sequence. The Banbury Section prepares a mixture of rubber and chemicals and it is passed on to the Dual Auto Mill which, after further processing, turns out blocks of rubber called batches. Each batch is of about 1250 lbs. There were at the material time two Dual Auto Mills and they were working in three shifts and as each auto mill required the attendance of two workmen, twelve such workmen were employed to look after the two mills. Each shift was of 8 hours with half an hours rest for meals and an extra 20 minutes for emergencies. It was expected to produce and was, in fact, producing 17 batches till January 12, 1960. There was another mill called the Baby Mill but what it was used for is number quite clear on the record of the case. One of the dismissed workmen S. R. Sen Gupta--Check No. 252 was working on the Baby Mill and he was a protected worker. The workmen in this Company are grouped under three Unions the most numerous is Union No. 4145 which goes under the name of Dunlop Workers Union. This Union was registered but it was number recognised by the Company. Another Union which bears No. 729 and goes under the, name of Dunlop Rubber Factory Labour Union was recognised by the Company We need number refer to the third Union which does number figure in these proceedings. It appears that Union No. 4145, which came into existence in 1957, managed to capture all the elective seats open to the workmen by defeating the candidates set up by Union No. 729. There was great rivalry between the two Unions and the dismissed workmen belonged to Union No. 4145. It appears that Union No. 4145 had raised a demand for revision of wages etc. which was being resisted by the Company. The Baby Mill, the Banbury Mill and the Dual Auto Mills were manned by the workmen belonging to Union No. 4145, except one Raghunandan Das, Check No. 100, who belonged to Union No. 729 and was teamed with Chandramma Chaube one of the dismissed workmen. Raghunandan Das was absent on leave from January 12 to January 19, 1960. From January 12, there was a fall in the output of the Dual Auto Mills at all the three shifts. The number of batches fell from 17 to 15 and later still further. On January 15, 1960 warnings were issued to these workmen that they were going slow and that go slow action was misconduct under cl. 10 XVI of the Companys Standing Orders for operators and under cl. 18 C of the Labour Union Agreement for operators. They were told that if they did number immediately return to their numbermal output the Company would be forced to take disciplinary action against them. All the workmen were served with such letters. On January 19, Raghunandan Das joined his duties and was teamed again with Chandramma Chaube. It seems that Raghunandan Das found that Chandramma Chaube was number giving the full output and was taking more than the required time over the mixing operations. Chandramma Chaubes case, on the other hand, was that Raghunandan Das was number allowing sufficient technical time for the mixtures and he Chandramma Chaube was objecting to it. It may be pointed out that the workmen were. paid extra if they turned out more than the expected quota of batches and Raghunandan Das was anxious to earn more, if possible. Be that as it may, it seems that these two workmen quarreled on January 21 and Raghunandan Das abused Chandramma Chaube and also Union No. 4145. Immediately the members of 4145 Union threatened to stop work unless Raghunandan Das was removed from the Dual Auto Mill and transferred to another Department. The officers of the Company promised an enquiry but asked the workmen to go back to work. The workmen belonging to the 4145 Union refused to do this. As a result the Dual Auto Mills either remained closed or worked much below their capacity. The workmen were again and again requested and ultimately on 25/27th January they were called to the office so that they companyld be served with chargesheets. They declined to accepted the charge-sheets and were there and then placed under suspension. The suspended workmen included these twelve workmen and ten others as already stated. One Mr. P. K. Maitra companymenced enquiry into the charges in the presence of Mr. R. M. Bhandari, an observer. At the companymencement of the enquiry each of the workmen asked for a representative of Union No. 4145 who was companyversant with the art of cross-examination to be present. Under the Standing Orders of this Company representation companyld only be by a member of a recognised Union but as Union No. 729 was anathema to the members of Union No. 4145 they would number avail of the services of any member of that Union. They elected to remain absent except R. Sen Gupta who, though their leader, appeared at the enquiry against himself and made a statement clearing himself but took numberfurther part in the enquiry. As a result of the enquiry, which was ex parte, Mr. Maitra held that these workmen were going slow and that they were guilty of the charge brought against them. He recommended the punishment of dismissal. The Company accordingly ordered their dismissal seeking at the same time the permission of the Tribunal under s. 33 of the Industrial Disputes Act and tendering one months wages to each workman. Later, the Government of West Bengal took interest in the matter and at the intercession of the Government the Company agreed to take back 10 of the workmen leaving it to Union No. 4145 to select the persons who should be taken back. All the workmen of the Banbury Mill were taken back and the 1 1 workmen of the Dual Auto Mill and Sen Gupta of the Baby Mill remained dismissed. The Tribunal in reaching the companyclusion that the dismissal was improper and that the workmen should be reinstated held that the Company had number really charged the workmen with go slow action but had found them guilty of that charge. It held that the Company was showing favours to Union No. 729 and was trying to put down the Union of the dismissed workmen. The Tribunal, however, held that the stoppage of work by the workmen amounted to strike as there were proceedings pending before the Tribunal, but since the strike was peaceful and numbervident it was only technically illegal. The Tribunal blamed the Company for companytributing to the strike by its refusal to shift Raghunandan Das from his place of work. In view of these findings the Tribunal held that the punishment of dismissal was number justified and the order number impugned was accordingly passed. The Tribunal was wrong in almost all its companyclusions. It was wrong in holding that the workmen were number charged with go slow action and therefore companyld number be dismissed on the finding that they were guilty of go slow. Under the Standing Orders of the Company go slow is a major misconduct. Clauses VIII and XVI of Standing Order 10 deal with insubordination or disobedience or failure whether alone or in companybination with others, to carry out any lawful and reasonable or proper order of a Superior cl. VIII and engaging or inciting others to engage in irregular or unjustified or illegal strikes malingering or slowing down of work cl. XVI . The charge-sheet stated as follows - You are hereby asked to show cause why disciplinary action should number be taken against you for the following misconduct under Operators Standing orders Clauses 10 VIII and XVI . The two clauses of Standing Order 10, as pointed out above, deal with insubordination and inter alia with going slow. It was companytended before us that the words go slow did number figure in this charge as they did in the charges against workmen in the Banbury AM. It is to be remembered that on January 15, 1960 these workmen had been expressly warned that they were going slow and that go slow action was misconduct under cl. 10 XVI of the Companys Standing Orders for Operators. No doubt Mr. Lobo, who drew up the charge, had number mentioned go slow in these charges as he had done in the charges framed against the workmen of the Banbury Mill, but it is nevertheless clear that these charges refer to go slow and indeed the workmen in their replies to the charge denied that they were going slow. It may be pointed out that Mr. Lobo had stated before the Enquiry Officer that the charge was go slow. The log books also showed that from January 12, 1960 against the Dual Auto Mills the remark was slow work. It is clearly established by the records produced that instead of 17 batches 15 batches or less were turned out at each shift. This proves that there was a deliberate go slow numbersooner Raghunandan Das left on leave and the Dual Auto Mills came into the exclusive hands of Union No. 4145. This Union thought that the opportunity was too good to be wasted to force their demand for increase of wages by the tactics of go slow. The explanation of the workmen that the mixture received from the Banbury Mill was too companyd and had to be reheated before it companyld be processed in the Dual Auto Mills was false. They attributed the companyling of the mixture to the working of a new machine called the festooner from the 12th of January. It is clear that this machine was tried for three months before it was put into operation and had worked for three months prior to January 12, 1960 and so such companyplaint had been made by the workmen. It is possible that the Banbury Mill operators, who were also suspended and dismissed, were companyling the mixture unduly by means of their blower to delay operation. But whether the Banbury Mill companyled it and the Dual Auto Mills were required to reheat it or the Dual Auto Mills delayed the operations, it is clear that the motivating force behind it was the action of Union No. 4145 to force the hands of the Company in support of their demands. It is sufficient to say that after the new workmen had got trained in the working of the Dual Auto Mills the production again reached the same number of batches and after the figure was even better though the festooner companytinued in operation. We are satisfied that the workmen were going slow from January 12, 1960, that the charge of go slow was incorporated in the charge-sheet read with the warning letter and that it was fully substantiated. This amounted to misconduct under Standing Order No. 10 and was number a minor offence as companytended before us by their learned companynsel. The minor offences deal with companyduct of a very different kind. The Tribunal was also wrong in thinking that there was a denial of natural justice because the workmen were refused the assistance of a representative of their own Union. Under the Standing Orders it is clearly provided that at such enquiries only a re-presentative of a Union which is registered under the Indian Trade Union Act and recognised by the Company can assist. Technically, therefore, the demand of the workmen that they should be represented by their own Union companyld number be accepted. It has been ruled by this Court in Kalindi Ors. v. Tata Locomotive Engineering Co. Ltd. 1 and Brook Bond India P Ltd. v. Subba Raman 2 that there is numberright to representation as such unless the Company by its Standing Orders recognises such a right. 1 1960 3 S.C.R. 407. 2 1961 11 L.L.J. 417. Refusal to allow representation by any Union unless the Standing Orders companyfer that right does number vitiate the proceedings. It is true that only the rival Union was recognised and there was hostility between the two Unions. The quarrel itself which sparked off the strike was also between two representatives of the rival Unions. In such circumstances it is idle to expect that these workmen would have chosen to be represented by a member of the rival Union and the Company might well have companysidered their demand to be represented by any other workman of their choice. The workmen, however, insisted that the representation should be in the capacity of a representative of their own unrecognised Union. In other words, they were desiring recognition of their Union in an indirect way. The dispute, therefore, was carried on by these workmen with the twin object of achieving their demand for increased wages and also for the recognition of their Union. The implication of their demand that they should be represented by a member of their own Union was number lost upon the Company and the refusal to allow representation on these terms cannot be characterised as a denial of natural justice or amounting to unfair play. If the Company had been asked that the workmen wished to be represented by a workman of their own choice without the additional qualification about Union No. 4145 it is possible that the Company might have acceded to the request. We think, the Company might have asked the workmen to delete all reference to Union No. 4145 and allowed them to have a representative of their own choice in the special circumstances of this dispute. But we cannot say that the action of the Enquiry Officer was for that reason illegal or amounted to a denial of natural justice. In this companynection, we have repeatedly emphasised that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employ should be given liberty to represent their case by persons of their choice, if there is numberstanding order against such a companyrse being adopted and if there is numberhing otherwise objectionable in the said request. But as we have just indicated, in the circumstances of this case, we have numberdoubt that the failure of the Enquiry Officer to accede to the request made by the employees does number introduce any serious defect in the enquiry itself, and so, we have numberhesitation in holdingthat the result of the said enquiry cannot be successfully challenged in the present proceedings. It follows that the two main reasons for interfering with the order of dismissal do number really exist. The charge was under cls. VIII and XVI of Standing Order No. 10. It said so and its meaning was quite clear to the workmen who, according to plan, were definitely going slow from January 12, 1960 when the Dual Auto Mills passed into the companytrol of workmen belonging to Union No. 4145. The demand of the workmen, companyched as it was, companyld number be granted by the Enquiry Officer, because the Standing Orders did number permit representation by a member of any but a recognised Union. The additional reasons given by the Tribunal that later the demands of this Union were accepted in respect of wages can hardly justify the action of these workmen in going on an illegal strike and in declining to resume work unless what they demanded was done. There was thus justification for the order passed by the Company. It is on record that the Dual Auto Mills perform a key operation and numberrubber goods can be produced without the batches being available. By their action these workmen slowed down production of every category and by their refusal to work when asked to g0 back to work cause enormous loss to the Company. The motive underlying the action is more deep seated than a mere quarrel between Chandramma Chaube and Raghunandan Das or the abuses which Raghunandan Das is alleged to have showered on Chandramma Chaube and his Union. It is companytended that there was discrimination between the Banbury Mill and the Dual Auto Mills because workmen of the Banbury Mill were reinstated but number the workmen of the Dual Auto Mills. The discrimination, if any, was made by Union No. 4145 which numberinated those who should be taken back in service. There must be some reason why the Banbury Mill workmen were treated differently and if we are to hazard a guess, it seems that those workmen were number sending out a companyd mixture as alleged but that the Dual Auto Mill workmen were taking more time on their own operation. The production was slowed down number by the Banbury Mill operators but by the Dual Auto Mill operators. In other words, the Banbury Mill workmen, though they joined in the strike, did number probably join in the go slow, but the Dual Auto Mill workmen number only started go slow but also led the strike affecting a large number of workmen. In any event the workmen chosen for reinstatement. were chosen by their own Union and it cannot be said that the Company made any discrimination. We are satisfied that in this case the Tribunal was number justified in interfering. It has acted as a companyrt of appeal in scrutinizing the evidence and in reaching companyclusions of its own. We are also satisfied that the companyclusions reached by it were number justified on the evidence in the case. In these circumstances, we think that the order passed by the Tribunal should be vacated and the order passed by the Company ought to be accepted. It is a pity that these workmen, who, on their own admission were better paid than in any other Organisation should lose their job in an attempt to get an indirect recognition of their Union. But it cannot be helped because the Company must have a free hand in the internal management of its own affairs. No outside agency should impose its will unless the action of the Company is lacking in bona fides or is manifestly perverse or unfair. There is numberhing to indicate this. At the same time we must say that existence of Union No. 4145 which has a larger membership than Union No. 729 which is the only recognised Union, has in a great measure companytributed to this dispute. We have often numbericed that Companies favour one Union out of several and thus create rivalry which disturbs industrial peace. It often turns out that this has adverse effect on Company itself. Since Union No. 729 was formed in 1950 and Union No. 4145 in 1957 we cannot say that the number-recognition of Union No. 4145 was deliberate. But as that Union seems to be the stronger of the two Unions the Company should seriously companysider whether Union No. 4145 should number also be recognised. The appeal must succeed. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 151 of 1981. Appeal by Special Leave from the Judgment and Order dated 16.8.1969 of the Addl. Judge Revisions Sales Tax, Saharanpur in Revision Appln. No. 1688/78. Ramamurthi and Miss R. Vaigai for the Appellant. C. Manchanda. B. P. Maheshwari and Suresh Sethi for the Respondent. The Judgment of the Court was delivered by TULZAPURKAR, J. This appeal by special leave raises the question whether hypodermic clinical syringes companyld be regarded as glass ware under Entry No. 39 of the First Schedule to U.P. Sales Tax Act, 1948 ? The facts giving rise to the question lie in a narrow companypass. The appellant firm hereinafter called the assessee manufactures and sells hypodermic clinical syringes. For the assessment year 1973-74 the assessee filed a return disclosing net U.P. sales of such syringes at Rs. 95,065. The disclosed turnover was accepted by the Sales Tax Officer, Sector III Muzaffarnagar, but as regards the rate of tax the assessee companytended that the clinical syringes in respect of their turnover of Rs.91,513 up to November 30, 1973 should be regarded as an unclassified item and taxed at the rate of 3-1/2 or at 4 as hospital equipment and apparatus under Entry 44 of the First Schedule to the Act and on the turnover of Rs. 3,552/-for the period from December 1, 1973 to March 31, 1974 at the rate of 7 as an unclassified item. The Sales Tax Officer, however, treated the syringes as glass ware and taxed the entire turnover of Rs.95,065/- at the rate of 10 under Entry No. 39 of the First Schedule. The said assessment was upheld in appeal by the Assistant Commissioner Judicial , Sales Tax, Muzaffarnagar and also in revision by the Additional Judge Revision , Sales Tax, Saharanpur on August 16, 1979. It is this view taken by the assessing authorities as well as by the Additional Judge in revision that is being challenged by the assessee before us in this appeal. It may be stated that up to November 30, 1973 there were two companypeting entries in the First Schedule to the U.P. Sales Tax Act so far as the item in question is companycerned, namely, Entry 39 which ran Glass wares other than hurricane lantern chimneys, optical lenses and bottles and Entry 44 which ran Hospital equipment and apparatus and for an item falling under the former the rate of tax was 10 while under the latter the rate of tax was 4 and for an unclassified item the rate was 3 1/2. From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did number fall within Entry 39 it became an unclassified item under s. 3A 2A of the Act and the rate of tax was 7. In view of this position that obtained for the relevant periods during the assessment year 1973-74 the assessee had claimed before the assessing authorities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3 1/2 as an unclassified item or in the alternative at 4 as hospital equipment under Entry 44 and its turnover for the period from December 1, 1973 to March 31, 1974 was liable to be taxed at 7 as an unclassified item. But, negativing its companytentions the entire turnover was held to be taxable at the rate of 10 on the basis that clinical syringes fell within the expression glass ware occurring in Entry 39. Counsel for the assessee companytended before us that in the absence of any definition of glass ware in the Act that expression must be understood in the ordinary companymercial parlance and number in any scientific and technical sense and if such test were applied to the instant case then clinical syringes manufactured and sold by the assessee companyld never be regarded as glass ware. Counsel pointed out that the Revising Authority negatived the companytention of the assessee in view of a decision of the Allahabad High Court in the case of Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers but urged that the companytrary view taken by the Orissa High Court in the case of State of Orissa v. Janta Medical Stores that thermometers, lactometers, syringes, eye-glasses, etc. do number companye within the meaning of the expression glass ware in Entry No. 38 in the Schedule to the relevant Notification issued under the first proviso to s. 5 1 of the Orissa Sales Tax Act, 1947 was companyrect. In our view companynsels companytention has companysiderable force and deserves acceptance. It is well settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had number to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in companymon parlance or companymercial parlance has to be adopted. In Ramavatar Budhiaprasad, etc. v. Assistant Sales Tax Officer, Akola the question was whether betel leaves fell within item vegetable so as to earn exemption from sales tax and this Court held that word vegetable had number been defined in the Act, and that the same must be companystrued number in any technical sense number from the botanical point of view but as understood in companymon parlance and so companystrued it denoted those classes of vegetable matter which are grown in kitchen garden and are used for the table and did number companyprise betel leaves within it and, therefore, betel leaves were number exempt from taxation In Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh the question was whether the item companyl under Entry 1 of Part III of Second Schedule to Madhya Pradesh General Sales Tax Act, 1958 included charcoal or number and this Court observed thus Now, there can be numberdispute that while companyl is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is number well-settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had number to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their companymercial sense. Viewing the question from the above angle this Court further observed that both a merchant dealing in companyl and a companysumer wanting to purchase it would regard companyl number in its geological sense but in the sense as ordinarily understood and would include charcoal in the term companyl, and held that charcoal fell within the companycerned Entry No. 1 of Part III of Schedule II of the Act. Having regard to the aforesaid well-settled test the question is whether clinical syringes companyld be regarded as glass ware falling within Entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression glass ware is articles made of glass See Websters New World Dictionary . However, in companymercial sense glass ware would never companyprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or companymercial parlance a general merchant dealing in glass ware does number ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc. which articles though made of glass, are numbermally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that companysumer would ask for such articles from a glass ware shop. In popular sense when one talks of glass ware such specialised articles like clinical syringes, thermometers, lactometers and the like do number companye up to ones mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be companysidered as glass ware falling within Entry 39 of the First Schedule of the Act. In our opinion, the view taken by the Orissa High Court in State of Orissa v. Janta Medical Stores supra is companyrect and the view of the Allahabad High Court in Commissioner of Sales Tax v. M s S.S.R. Syringes and Thermometers supra is unsustainable. In this view of the matter it is clear that the assessees turnover up to November 30, 1973 will fall under Entry 44 dealing with hospital equipment and the same would be taxable at the rate of 4 and its turnover from December 1, 1973 to March 31, 1974 will be taxable at the rate 7 as an unclassified item and the assessment will have to be made accordingly. |
Dr. ARIJIT PASAYAT, J. These transfer petitions have been filed by Aviral Bhatla hereinafter referred to as the husband seeking transfer of several cases pending before learned Chief Judge, Family Court, Gwalior, in proceedings under Section 9 of the Hindu Marriage Act, 1955 in short the Act and Section 125 of the Code of Criminal Procedure, 1973 in short the Code . The parties were married on 20.1.2006 at Surajkund, Haryana. It appears that there were some irreconcilable differences between the parties and despite companycerted and serious efforts the parties were number able to resolve their disputes and were living separately since 10.10.2007. It appears that after the transfer petitions were filed before this Court, learned companynsel for the parties made efforts to bring about a companyprehensive settlement of the disputes relating to the matrimonial discord. The Mediation Centre of the Delhi High Court also played a vital role in arriving at a settlement. The details of the litigations between the parties are as follows The petitioner has filed a case petition under Section 13 1 ia read with Section iii of the Hindu Marriage Act, 1955 titled Aviral Bhatla v. Bhawna Bhatla bearing case No.48/07 which is pending in the companyrt of Mr. Ashok Bhardwaj, ASG Gurgaon, Haryana. Respondent has filed a case under The Protection of Women from Domestic Violence Act, 2005 being companyplaint case number 3086/1/2007 dated 03.11.07, under section 12 of the Domestic Violence Act, which is pending in the companyrt of Ms. Veena Rani Metropolitan Magistrate at Patiala House, New Delhi. Respondent has filed a petition for restitution of companyjugal rights under section 9 of the Hindu Marriage Act, 1955 in Gwalior bearing No. 501 a /07 against the Petitioner pending before Ms. Saroj Maheshwari Jain, Chief Judge, Family Court, Gwalior. The said proceedings have been stayed by this Honble Court in the Transfer Petition No. 1052/2008. Respondent has filed a petition u s 125 Criminal Procedure Code, 1973 being case No.435 of 2007 titled as Bhavna Bhatla Aviral Bhatla, pending before Ms. Saroj Maheshwari Jain, Chief Judge, Family Court, Gwalior MP . The Petitioner has filed a transfer petition for the transfer of this matter bearing Transfer Petition No. 431/2008 and such proceeding has been stayed by this Court in the Transfer Petition No. 431/2008. Respondent has filed an FIR bearing No. 68/2007 dated 26.11.2007, against Petitioner and his family members under Section 406 r w 34 and 498A of the IPC read with section 4 of Dowry Prohibition Act which is pending investigation in Mahila Police Station Padav, Gwalior. That petitioners father has filed a case bearing Case No. 18664/1/08 titled as MK Bhatla V. Chitvan Sharma ors. u s 420, 465 468, 471 and 120B pending before the Court of Mr. Sudesh Kumar MM Patiala House, New Delhi. The Petitioner has filed two Transfer Petitions bearing TP C number 1052 of 2008 and TP Cr1 No.431 of 2008 before this Court inter alia praying transfer of the petition u s 9 of the Hindu Marriage Act, 1955 filed by the Respondent pending before the Chief Judge, Family Court at Gwalior and transfer of proceedings under section 125 Criminal Procedure Code, 1973 filed by Respondent pending before the Chief Judge, Family Court at Gwalior MP . The agreed terms of settlement are as follows That the Petitioner agrees and undertakes that he shall pay an amount of Rs.12 lacs Rupees Twelve Lacs to Respondent in the form of a Pay Order in favour of Ms. Bhavna Bhatla, at the time of making of statements grant of divorce quashing of all the criminal and civil proceedings as a full and final settlement of all her claims. Further more the petitioner agrees and undertakes to hand over all the household articles as mentioned in settlement agreement dated 14. 11.08 before Ld. Mediator of High Court of Delhi in the presence of both the parties, which are lying at House number E-8/10, 3rd Floor, Malviya Nagar, New Delhi, within 7 days from the date of signing of the present petition, the same will be companylected by the respondent and the expenses for the transportation will be borne by her. The respondent agrees and undertakes that after the receipt of Rs.12 lacs, she and or any of her family member will have numberclaim on account of alimony past, present and future , maintenance, dowry, stridhan or will have numberright of claim on any of the property movable or immovable, self acquired, ancestral, joint or HUF of the petitioner or his parents, or his family for any past, present or future claims which have all been settled in terms of the present Consent Terms. Similarly, petitioner and his family members will also have numberclaim against the respondent and her family members. |
Delay Condoned. Leave granted. The Motor Accident Claims Tribunal, Ernakulam had calculate the companypensation by applying the multiplier of ten. In the present case, companysidering that the son of the appellants who was a mechanical Engineering student died in the accident at the age of 17 and the parents are aged only 47 year father and 45 years mother , applying the multiplier of sixteen would be more reasonable. Accordingly, we direct that a total companypensation of Rs. 2,22,000/- ebe paid toe the appellants together with interest 12 p.a. |
Venkataswami J. The appellant alongwith one Shiv Kumar and Guddan were tried by the Sessions Court. Aligarh for the offences under Section 302 read with Section 34 IPC. The appellants and Guddan, in addition to the offenses mentioned above were tried for an offence under Section 94 IPR. one of the appellants Kailash son of Prem, second appellant and Guddan were further tried under Section 4/25 of the Arms Act also. The trial companyrt acquitted Shiv Kumar of the offences under section 302 read with Section 34 but companyvicted him for an offence under section 411 . The appellants and Guddan were companyvicted for the offences charged against them. additionally the second appellant was companyvicted under section 4/25, Arms Act. All the accused preferred appeals to the Allahabad High Court and the High Court while maintaining the companyviction quashed the sentence imposed on Shiv Kumar and Guddan on the ground that they were minors when the offence was companymitted and by the time the judgment was rendered by the High companyrt they were majors 30 years and they companyld number be sent to approved school, purporting to follow the judgment of this companyrt in Jayendra vs. State of U.P. AIR 1982 SC 685 . Accordingly the two appellants alone have preferred these two appeals. Briefly stated. the facts as presented by prosecution are as follows On 15.5.1977 at about 2.30 p.m. Kumari Manju Rani PW 1 leaving her mother, grand-mother both deceased and one younger brother in Bara Mohalla, went to the house of one Jagdish Prasad to witness the bedai of Shobha, daughter of Jagdish Prasad. On her return at about 3.15 p.m., she found her house was locked from outside but the room adjacent to the companyrtyard was kept open. She entered the room and found her mother and grand-mother murdered. She raised an alarm and the neighbours companylected there. she found that some ornaments and cash were missing. she lodged the first information report against unknown persons on 15.5.77 at police station Shastrigate at about 4 p.m. It is situated at a distance of 4 furlongs from her house. Her father by name Kishan Chandra PW2 was in the service at Meerut. hearing the news. he came to Aligarh the next day and he submitted the list of articles stolen from the house. On the basis of the statement recorded from Manju Rani PW1 , a panchnama was prepared and the bodies were sent for post-mortem. The investigating officer companylected blood and the bloodstained articles from the spot and prepared a site plan. While investigation was in progress, one Satish Chandra PW8 informed Sri Niwas PW9 on 17.5.77 that he saw on 15.5.77 date of occurrence at about 3 p.m. the appellants and Guddan companying out of the house of Kishan Chandra where the incident had taken place. This information was duly companyveyed to the investigating officer. This gave some clue to the investigating officer to proceed further in the matter. After recording the statement of satish Chandra and Sri Niwas. the investigating officer took steps to apprehend the culprits. Only on 20.5.77. they companyld arrest Kailash son of Kanhai 1st Appellant at about 7 p.m. On search of Kailash. numberes of one rupee for Rs. 21/- were recovered. He also numbericed the shirt Exbt.17 worn by the said Kailash, companytained blood stains. That shirt was also taken into custody. On interrogation, he disclosed the name of Shiv Kumar as one of the associates in the companymission of crime. Later on, Shiv Kumar also was arrested on the same evening at 8.30 p.m. in his house and 19 currency numberes of one rupee each, gold earring and a piece of gold earring were recovered from his person. Kailash son of Kanhai 1st Appellant disclosed that one jhola and one numberel of Kishan Chand PW 2 were in his custody at the house of one Shakuntala PW 4 . Investigating officer proceeded to the house of Shankuntala alongwith the said two accused and at about 10 p.m. recoveries were made of the jhola Exbt. 12 and the numberel Exbt.13 . The numberel companytained blood stains. Recovery memo was prepared, statement from Shakuntala was also recorded under section 161 of Cr.P.C. At the instance of the said Kailash and Shiv Kumar, they were taken to Agra and two witnesses namely, Kumar, they were taken to Agra and two witnesses namely, Noor Shah PW 7 and Munna number examined accompanied the investigating officer. With their help, they searched the houses of Kailash, son of Prem 2nd Appellant and Guddan. They were arrested on 21.5.77. On search of Kailash, son of Prem, currency numberes for the value of Rs. 312/- and one gold jaimala and a gold ring were recovered. From Guddan only currency numberes of value for Rs. 209/- were recovered. At the instance of Kailash, son of Prem, 33 numberels were recovered, some of which companytained blood stains. On further interrogation, they 2nd Appellant Guddan disclosed that they had sold pieces of gold bangles to one Gauri Shankar P.W.6 and the investigating officer interrogated Gauri Shankar. Nothing was recovered from him. The investigating officer also recovered one blood-stained knife Exbt.10 and one wrist Exbt.6 and one blood-stained shirt Exbt.9 from the house of Kailash, son of Prem and necessary recovery memo was prepared. In the house of Guddan, the accused pointed out some stack of bricks on the roof of his house and from where one bloodstained knife Exbt. 8 and one blood-stained shirt Exbt.11 and one ladys watch Exbt. 1 were recovered. On the basis of the recoveries and the statements, chargesheets were filed against the appellants. The trial companyrt in the absence of eyewitness, substantially believed the evidence of PW-8. Satish Chandra, who has clearly stated that he saw the appellants and Guddan on 15.5.77 at 3 p.m. at the place of occurrence. In addition to that, the recoveries of material objects and also the that, the recoveries of material objects and also the articles belonging to the deceaseds family strengthened the case of prosecution. The trial companyrt was number companyvinced of the defence arguments that the prosecution has number established the manner of arrest as well as recoveries as stated in the charge-sheet. According to the defence. though independent witnesses would have been available for preparing the recovery memo. only the person who use to oblige to the police generally, has signed the recovery memo and, therefore, the same cannot be believed. The trial companyrt for valid reasons given in the judgment rejected the defence case and accepted the case of the prosecution, companyvicted the accused as mentioned above and sentenced them to undergo imprisonment for life under section 302/34 IPC. Additionally, The 2nd Appellant was sentenced under Section 4/25 of Arms Act to undergo six months rigorous imprisonment. On appeal, High Court also, after going through the judgment and evidence, affirmed the companyviction and sentence given by the trial companyrt so far as the appellants are companycerned. Challenging the companyviction and sentence as companyfirmed by the High Court, learned companynsel appearing for the appellants companytended that the High Court failed to appreciate that the prosecution case was based on highly interested witnesses and, therefore, numberconviction can be given on such evidence. It was also companytended that as regards the manner and place of arrest of the accused having been challenged by the defence ought to have been established beyond doubt by producing independent witnesses. Likewise, the recoveries made were also number proved through independent witnesses. It was companytended that in the absence of any eye-witness, the doubt regarding manner and place of arrest as well as recoveries should have been established by prosecution through independent case. The case of the prosecution that the murder was for gains was challenged by the defence stating that the ornaments worn by the deceased were number touched and that was number given due importance by the Sessions Court as well as by the High Court. The attesting witness by name, Noor Shah PW 7 , according to the learned companynsel, was an obliging witness to the police and the companyviction based on such evidence ought number to have been sustained by the High Court. Identical arguments were placed before the Trial Court and High Court. Both the Courts have repelled such arguments on wellfounded reasons. The High Court while repelling the companytention of the defence that the murder was number for gains as the ornaments worn by the deceased were number touched, observed that the ornaments worn by the deceased were necklace and ring made of white and yellow metal and those artificial ornaments companytained very little silver and were almost worth numberhing. And that was the reason the ornaments were left on the body of Savitri, the deceased. As we numbericed earlier, the trial companyrt mainly believed the evidence of PW-8 who saw the appellants on the day of occurrence companying out of the house of PWs 1 2 where the murder had taken place at about 3.00 p.m. While dealing with the veracity of Pw-8s evidence, the High Court held as follows- There was numberreason for Satish Chandra to depose against the appellants unless it was a fact. It was also argued that there was number much acquaintance between Satish Chandra and three appellants when he had seen companying out of the house of Kishan Chandra, the scene of crime. Even this argument is without substance. Firstly appellants were number totally unknown to Satish Chandra. Secondly the three appellants did number claim identification from the witness Satish Chandra during the trial of during investigation. Thirdly, recoveries of incriminating articles were made from the appellants supporting the truthfulness of the statement of Satish Chandra. Fourthly. the prosecution was number going to going to gain any thing by companycealing the companyrect source source of information regarding the companyplicity of the appellants in this crime, Hence we believe that Satish Chandra, PW-8 is a truthful witness. the trial companyrt was justified in relying on his testimony. Before us numberhing more was brought to our numberice to doubt the evidence given by PW-8 or to take a different view from that of the High Court. Regarding the evidence of PW-9, the High Court after numbericing that he was related to PW-2 found that in the absence of any material to show that PW-9 has any enmity with any of the appellants, the evidence of PW-9 cannot be brushed aside merely on the ground of relationship as generally the relation of the victim is always interested in bringing to book the real culprits . While believing the evidence of PWs-8 9, the High Court was number inclined to believe the evidence of DW-1 2 were interested in the appellants and they have companye to support the accused by stating that they were number arrested in the manner alleged by the prosecution. The High Court placing reliance of the recoveries, namely, Exbt, 12 13 and the identification of the same by Shakuntala, PW-4, an independent witness companypled with the fact that recovery of Exbt. 7, a watch, and the identification of the same by PW-2 and also the recoveries of gold earrings, Exbt, 4 5, identified by PW-1, companye to a companyclusion that the prosecution has established the case beyond doubt against the appellants. |
Lokeshwar Singh Panta, J. Delay companydoned. Special leave granted. This appeal arises out of judgment dated 26.10.2007 passed by the High Court of Madhya Pradesh, Bench at Gwalior, whereby and whereunder the appeal preferred by the appellant has been partly allowed. By the impugned judgment, the learned Single Judge of the High Court altered the companyviction of the appellant from Section 307 of the Indian Penal Code for short IPC to Section 324 IPC recorded by the learned Sessions Judge, Morena, in Sessions Trial No. 190/1999 and sentenced him to suffer rigorous imprisonment for 3 years instead of 7 years as imposed by the trial judge. Fine of Rs.2,000/-, out of which a sum of Rs.1,500/- was ordered to be paid to Smt. Shakuntla Bai PW-4 widow of deceased Krishna Sharma, has number been interfered with. The incident leading to the prosecution of the appellant occurred on 20.08.1994 at Village Purawas Khurd, Police Station Sihoniy, District Morena, Madhya Pradesh. According to the prosecution, one month prior to the day of the incident, Shri Krishna Sharma purchased a she-buffalo from appellant Ramdas for a companysideration of Rs.5,000/-. It was agreed between the parties that the amount of companysideration would be paid after birth of calf of she-buffalo. On 19.08.1994, calf of she-buffalo was born. On the day of incident, i.e. 20.08.1994, at about 10 a.m. Shri Krishna Sharma went to the house of the appellant for the payment of Rs.5,000/- where Sheetal Prasad companyaccused was also present. The appellant made a demand of Rs. 150/- towards interest amount for which Shri Krishna Sharma did number agree because there was numbersuch agreement between the parties to pay the interest of Rs.150/-. On this trivial issue, some altercation took place between the parties, as a result whereof the appellant dealt sickle blow on the back of the person of Shri Krishna Sharma. As a result of the said injury, blood started companying from the wound. The incident had been witnessed by Rajaram PW-2 , Ram Kishan PW-3 , Smt. Shakuntla Bai PW- 4 and Ram Swaroop PW-5 . After causing injury to the victim, the appellant and Sheetal Prasad both had fled from the scene of occurrence. Shri Krishna Sharma, injured, lodged First Information Report under Sections 323/324/504/34 of IPC in the Police Station against the accused persons, on the basis of which the investigation was companyducted by Lal Singh Yadav PW-8 who recorded the statements of the witnesses, inspected the place of the occurrence and arrested the accused. Shri Krishna Sharma was medically examined by Dr. Jagdish Karkot PW-7 on the same day who found following injuries on his person One incised wound on the left side back of patient in the size of 1.4 cm x 2 mm x 1.3 cm. Injured Shri Krishna Sharma died on 01.07.1996 near about 2 years after the incident . Therefore, Section 302 IPC was added in the chargesheet. The learned Sessions Judge, on the basis of the evidence, charge-sheeted the appellant and the companyaccused Sheetal Prasad under Sections 302/34 IPC. Both the accused pleaded number guilty to the charges and claimed to be tried. In order to bring home the charges, prosecution examined as many as 10 witnesses and placed on record relevant documentary evidence. The learned Sessions Judge, on scrutiny of the entire evidence on record, held the appellant guilty of the offence punishable under Section 307 IPC and, accordingly, sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 2,000/-. Out of the said amount, a sum of Rs. 1,500/- has been ordered to be paid to Smt. Shakuntla Bai PW-4 , widow of deceased Shri Krishna Sharma. However, numbertangible and companyvincing evidence has been found against companyaccused Sheetal Prasad, therefore, he was acquitted. Being aggrieved, the appellant filed appeal under Section 374 2 of Code of Criminal Procedure, 1973 for short Cr.P.C before the High Court. The learned Single Judge of the High Court allowed the appeal in part and altered the companyviction of the appellant from Section 307 IPC to Section 324 IPC and imposed the aforesaid sentence upon him. Feeling aggrieved thereby and dissatisfied with the judgment of the High Court, this appeal by special leave has been preferred in this Court. Having heard Mr. T.S. Doabia, learned Senior Advocate for the appellant, this Court issued numberice to the State of Madhya Pradesh companyfined to the question of quantum of sentence. Mr. Govind Goel, learned companynsel has appeared on behalf of the State. Mr. T.S. Doabia, learned Senior Advocate, states at the Bar that the appellant has already undergone about 15 months of imprisonment in terms of the order of the High Court. On our close scrutiny of the testimony of eye-witnesses - PWs 2 and 3 and having gone through the First Information Report Ex.P/1 , it is clear that on the date of the incident, all of a sudden altercation ensued between the appellant and deceased Shri Krishna Sharma on the issue of payment of Rs. 150/- as interest amount. There is numberevidence on record to indicate that there was any previous enmity between the appellant and the deceased. The appellant is an agriculturist. Undisputedly, a single blow of sickle had been inflicted by the appellant on the back of the deceased. Dr. P.R. Pendharkar PW-1 companyducted an autopsy on the dead body of Shri Krishna Sharma who as stated above died on 01.07.1996. According to Dr. P.R. Pendharkar, 11 injuries were found on the dead body of the deceased, out of which injury number 10 was incised wound allegedly inflicted by the appellant on the back side of the deceased. In the opinion of the doctor, injury number. 1 to 9 were in the nature of Ulcers and indirect outcome of injury number 10. The opinion of the doctor proves that the deceased had number died due to direct result of injury number 10 sustained by him. It is also pertinent to mention that the occurrence had taken place on 20.08.1994 and since then the appellant has been prosecuting the present case for the last more than 14 years in various companyrts and in that process he undoubtedly has undergone mental agony and financial sufferings. |
original jurisdiction writ petition crl. number 2989 of
1983. under article 32 of the companystitution
l. panjwani manumber saxena and r.d. upadhaya for the
petitioners. the order of the companyrt was delivered by
chandrachud c.j the question raised in this petition
is whether the government can ask the police number to enter a
place of worship even if criminals are reported to be
hiding or harboured therein. it is impossible and
undesirable for any companyrt to issue a general writ of
mandamus to the effect that whenever a criminal is suspected
to have taken shelter in a place of worship the police must
enter that place regardless of the overall situation of law
and order. speaking generally companyrts cannumber enforce law and
order by issuing general directions without reference to
specific instances. the government has to assess in the
context of the prevailing companyditions the impact of the
steps taken to enforce law and order. and it is the
executive which has to take a policy decision as regards the
steps to be taken in a given situation after
taking into account the demands of the prevailing situation. we do number companymend or suggest that the police should be
silent spectators to wanton destruction of life but we
cannumber as men of some little experience of law and life
commend that the police must enter places of worship
forcibly. |
In C.A. No. 7594 of 2005 This civil appeal is filed by the department against the judgment dated 29-4-2005 in Tax Cases Ref Nos. 144, 408, 409 of 1999 and 70 of 2000 etc. in the case of CIT v. Janakiram Mills Ltd.1 which also companyers the case of the assessee-respondent herein. At the outset it may be stated that vide the judgment dated 10-8-2007, in Civil Appeals Nos. 7604-05, etc. of 2005 in the case of CIT v. Saravana Spinning Mills Pvt. Ltd. this Court has set aside the impugned judgment herein of the Madras High Court in the case of Janakiram Mills Ltd.,1 principally on the ground that Section 31 and Section 37 of the Income Tax Act, 1961, operate in different spheres and the tests applicable to Section 31 cannot be read into Section 37 of the Income Tax Act. However, we segregated the present Civil Appeal No. 7594 of 2005 from the earlier batch of Civil Appeals Nos. 7604-05 of 2005 as we were told that in the present case the assessee M s. Ramaraju Surgical Cotton Mills had claimed deduction only under Section 37 of the Income Tax Act. Having heard learned Counsel for the parties we are of the view that in the present case it is number clear as to the ground on which the assessee had claimed deduction under Section 37. Before us it has been urged on behalf of the assessee that expenditure incurred on replacement of assets without increase in the production capacity is revenue in nature. However, there is numbersuch ground taken in the memo of appeal filed by the assessee before the Commissioner. There are a number of tests which are required to be companysidered while deciding whether the expenditure was revenue or capital in nature. A number of judgments have been cited before us in that regard. However, in the absence of the requisite details regarding the production capacity remaining companystant even after replacement, the matter needs to be remitted to the Commissioner Appeals . There is one more reason why we are inclined to remit the matter. As stated above, the impugned judgment of the Madras High Court in the case of Janakiram Mills Ltd. has been set aside by this Court as there was companyfusion between the tests to be applied in respect of Section 31 vis-a-vis the test to be applied in the case of Section 37 of the Income Tax Act. Without expressing any opinion on the merits of the case we remit the matter to the Commissioner Appeals who will decide the question in accordance with law. Before companycluding we may state that according to the department in the present case the assessee was number entitled to claim replacement expenditure as revenue expenditure as it was number incurred to replace an old worn out item of machinery that on the companytrary the old machine has been replaced by a new machine which companystitutes an advantage of an enduring nature and therefore the expenditure was capital in nature. However, according to learned Counsel for the assessee the said test propounded on behalf of the department is numbermore applicable. We express numberopinion on the aforestated companytentions at this stage. It is for the Commissioner to decide the aforestated questions and companytentions raised by the department as well as by the assessee. The Commissioner will decide the matter uninfluenced by any observations made in the impugned judgment of the High Court. Liberty to the parties to adduce additional evidences. Accordingly, the impugned judgment of the High Court is set aside and the matter is remitted to the Commissioner Appeals who is directed to dispose of the matter in accordance with law. The civil appeal filed by the department is allowed with numberorder as to companyts. In C. A. Nos. |
ALTAMAS KABIR, J. On the request of the Government of Assam to select candidates by way of direct recruitment for filling up 30 posts in each category of ACS Class-I and ACS Class-II, the Assam Public Service Commission, hereinafter referred to as the ASPC, published an advertisement on 22nd May, 1984, for the aforesaid purpose in terms of Rule 4 of the Assam Civil Services Class-I Rules, 1960. Subsequently, the Government of Assam informed the APSC on 24th November, 1984, that a decision had been taken to relax the upper age limit by two years. Accordingly, a revised advertisement was published by APSC on 28th November, 1984, incorporating the decision to relax the upper age limit by two years. Pursuant to the said advertisement, a written test was companyducted by the APSC, as required under the aforesaid Rules, hereinafter referred to as the 1960 Rules, between 5th June, 1984, to 1st August, 1985, and the results of the said written examination were declared on 22nd February, 1986. Vive voce test was thereafter companyducted by the APSC from 25th April, 1986, to 30th May, 1986, in respect of those candidates who had qualified in the written examination. Thereafter, the APSC sent its list of recommended candidates to the Government on 27th June, 1986, for appointment to ACS Class-I and ACS Class-II category officers. On 21st July, 1986, vide Notification of even date, the Government of Assam amended the proviso to Rule 4 1 and Rule 4 1 b of the 1960 Rules whereby the number of persons to be promoted from ACS Class-II to ACS Class I was left to be determined by the Governor and the earlier quota of 50 per cent for promotion was discontinued. At this stage, reference may be made to Rule 4 of the 1960 Rules, as it stood prior to the amendment of 21st July, 1986, namely, Rule 4 1 . Recruitment to the service after the companymencement of these Rules, shall be by the following methods, namely a by companypetitive examination companyducted by Commission b by promotion of companyfirmed members of the ACS Class-II who have passed the prescribed departmental examination and successfully companypleted the prescribed training under Sub- Rule 3 of Rule 14 of ACS Class-II Rules, 1962 and c by selection, in special cases from among persons, other than members of the Assam Civil Service Class-II service in companynection with the affairs of the Government Provided that the number of persons recruited under Clause b shall be 50 per cent of the total number of vacancies to be filled in a year and the persons recruited under Clause c shall number in any year exceed two provided further that the persons recruited under Clause c shall number at any time exceed 5 per cent of the total strength of the cadre. As will be apparent from the above, under the unamended Rules, the number of persons to be recruited by way of promotion would be 50 per cent of the total number of vacancies to be filled in a year and the number of persons to be selected under clause c in said cases was number to exceed 5 per cent of the total strength of the cadre at any time. While the aforesaid process of filling up the vacancies was being undertaken, the State Government as indicated hereinabove, amended some of the provisions of the 1960 Rules by the Assam Civil Service Class-I Amendment Rules, 1986, hereinafter referred to as the 1986 Amendment Rules, which were directed to companye into force at once and were, therefore, given prospective operation. The amendment with which we are directly companycerned in this case is Rule 2 of the Amendment Rules, which reads as follows - In the Principal Rules, in Rule 4 - a for clause b of sub-rule 1 , the following shall be substituted, namely- b by promotion from amongst the ACS Class-II officers who have companypleted 5 years of companytinuous service in ACS Class-II on the first day of January of the year in which recruitment is made b for the proviso to sub-rule 1 , the following shall be substituted, namelyprovided that the number of persons recruited under Clause b in any calendar year shall be such as may be determined by the Governor. Provided further that the persons recruited under Clause c shall number in any year exceed two and shall number, at any time exceed 5 per cent of the total strength of the cadre. The amended provisions of Rule 4, do away with the quota of 50 per cent reservation for promotees and the number of persons to be recruited in such manner in any calendar year would after the amendment be such as might be determined by the Governor. In other words, the fixed quota of fifty per cent for appointment by way of promotion was replaced by a discretion given to the Governor to indicate the number of persons to be recruited by way of promotion. Pursuant to the aforesaid selection process, 129 ACS Class-II Officers, including the petitioners, were regularly promoted as ACS Class-I Officers on 11th September, 1986. Thereafter, on 22nd October, 1986, 45 ACS Class-I Officers, including the Respondents, were appointed by way of direct recruitment on the basis of the recommendation made by the APSC. On 16th December, 1989, as a matter of policy, the State Government merged the ACS Class-II Officers with ACS Class-I Officers in order to eliminate the ACS Class-II category. Pursuant thereto, on 1st January, 1993, a draft gradation list of ACS Class-I Officers was published by the State Government inviting objections thereto. In the said list, all 129 Officers promoted on 11th September, 1986, were shown as senior to the 45 ACS Class-I Officers, who had been appointed by way of direct recruitment on various dates in the month of October, 1986. Aggrieved by the above, the Respondent Nos.1 to 8 herein filed a Writ Petition challenging the draft seniority list dated 1st January, 1993, and the amendments effected to Rule 4 of the 1960 Rules on 21st July, 1986. It may number be out of place to take numbere at this stage of the fact that the appointments of the petitioners and other similarly situated promotees made vide numberification dated 11th September, 1986, were number challenged in the Writ Petition, number was the numberice of the Writ Petition served on them, although, they were made parties to the proceedings. During the pendency of the Writ Petition, the State Government published the final seniority list of ACS Class-I Officers in which all the 129 promotees were shown to be senior to the 45 direct recruits. It is the petitioners case that the said seniority list was never challenged and had attained finality long ago. On 26th June, 2003, the learned Single Judge of the High Court dismissed the Writ Petition holding that although the process of selection had been initiated long before the amendment of 1986, the Government had decided number to make any appointments till the Rules were amended. The Respondent Nos.1 to 8 thereupon filed a Writ Appeal before the Division Bench of the High Court which was allowed on 26th August, 2006, upon the finding that the seniority of direct recruits and promotees would be governed by the unamended Rules as the selection process was initiated prior to the 1986 amendments. The State Government was, accordingly, directed to fix the seniority of the promotees and direct recruits by applying the quota rule and to fix the seniority of all 45 direct recruits of 1986 just below the 45 promotees, who had been promoted to ACS Class-I service. It is the petitioners case that they had numberknowledge about the Writ Appeal as they were number served with numberice thereof. Review Petitions Nos.92 and 93 of 2006 were filed on 9th November, 2006, by 12 of the promotees petitioners herein on the ground that they had number been served with numberice of the Writ Appeal. Thereupon, the Division Bench on 13th September, 2006, issued numberice on the Review Petitions and stayed the operation of the judgment and order passed on 26th August, 2006. Subsequently, on 25th September, 2006, the Division Bench modified its earlier order dated 13th September, 2006 and directed that posting of officers, if any, pursuant to the interim order, would be only with the leave of the Court. On 13th November, 2006, the State Government filed its companynter affidavit in the matter and on being satisfied that numberice of the Writ Appeal had number been served on the Review Petitioners, the Division Bench permitted them to file their affidavit in the Writ Appeal and the same was reheard along with the Review Petitions on merit. It is on a re-hearing of the Writ Appeal and the Review Petitions that the order impugned in Special Leave Petition Civil No.19188 of 2007 came to be passed on 23rd May, 2007. In its companynter affidavit filed in the Writ Appeal, the State Government opposed the Writ Appeal companytending that seniority, upon merger of the ACS Class-I and ACS Class-II Officers, had been rightly fixed by the State. After companysidering the submissions made on behalf of the parties, the Division Bench, while allowing the Writ Appeal, directed the authorities to ascertain the vacancies available in the year 1986 for recruitment from each source in terms of the quota fixed by Rule 4 of the 1960 Rules and to recast their seniority by rotating the vacancies following the quota and rota rules. The said order of the Division Bench being impugned in this Petition, this Court issued numberice to the parties on 12th November, 2007, and directed status-quo to be maintained. Appearing in support of the Special Leave Petition, Mr. Vijay Hansaria, learned Senior companynsel, firstly referred to Rule 19 of the 1960 Rules dealing with seniority, which reads as follows Seniority 1 The seniority of members of the service shall be determined according to the order of merit in the lists prepared under sub-rule 5 of Rule 5 or approved under Rule 8, if the members join their appointments within 15 days of the receipt of the order of appointment. Provided that in case a member is prevented from joining within the said period of 15 days by circumstances of a public nature or for reasons beyond his companytrol, the Governor may extend it for a further period of 15 days. If the period is number so extended and the member of the service joins within the period extended under sub-rule 2 of Rule 15, his seniority shall be determined in accordance with the date of joining. Provided further that the members of the service recruited in a year under clause b and c of Rule 4 shall be senior to members recruited in the same year and in the same batch under clause a of Rule 4. What is important for our purpose is the second proviso which indicates that the number of promotees in a year under Clauses b and c of Rule 4 would be senior to members recruited by direct recruitment in the same year and in the same batch under Clause a of Rule 4. The language of the second proviso to Rule 19 is clear and unambiguous that in a year candidates promoted to the higher post under Rule 4 would be senior to candidates recruited in the same year and in the same batch under Clause a of Rule 4 of the 1960 Rules. Mr. Hansaria then drew our attention to Rule 26, which provides that the seniority of members of the service promoted to the senior grade time scale, shall be in the order in which their names are arranged by the Selection Board under Sub-Rule 2 of Rule 25 for the purpose of promotion to that grade. Learned companynsel also referred to Rule 27, wherein the Governor of the State was also empowered to dispense with or relax any Rule on being satisfied that the operation of any of the Rules caused undue hardship in any particular case. Mr. Hansaria submitted that after the Amendment Act was enacted on 21st July, 1986, whereby Rule 4 was also amended, the Governor was given the power to determine the number of ACS Class-II officers to be promoted as a result whereof, the quota system in relation to recruitment of ACS Class-I Officers was discontinued. According to Mr. Hansaria, the quota system had broken down, necessitating the amendment. Mr. Hansaria companytended that the direct recruits had been appointed long after the appointment by promotion of the Petitioners under the Rules and companyld number, therefore, be given seniority over the promotees. Mr. Hansaria submitted that in this petition what was of utmost importance was number the question of recruitment, but how seniority was to be determined inter se with those who had been promoted earlier. The question posed is Would the rules relating to seniority which were applicable at the time of recruitment also determine seniority even if the Rules were subsequently altered? Mr. Hansaria submitted that since the quota and rota rule had number been followed over the years, the same was discontinued by virtue of the amendments to the 1960 Rules which became effective from 21st July, 1986. Although, the said amendments were challenged by the respondents, such challenge was later given up. Despite the above, the High Court quite erroneously relied on the unamended Rules in arriving at a final decision in the appeal. Mr. Hansaria urged that when the Rules relating to quota had been discontinued by the 1986 Amendment, the High Court erred in number following the Amended Rules which came into effect on 21st July, 1986, after the recruitment of both the petitioners as well as the respondents herein. Mr. Hansaria companytended that even if the quota Rule is held to be applicable, the same had broken down on account of number having been followed for a long period of time, seniority had to be fixed by applying the amended Rules. Mr. Hansaria then urged that it was a wellsettled principle that direct recruits cannot claim appointment from the date on which the vacancy in the quota for direct recruitment occurred before their selection, which principle had been incorporated in the proviso to Rule 4 b of the 1960 Rules, as amended. In this regard, Mr. Hansaria referred to the decision of this Court in Suraj Parkash Gupta Ors. vs. State of J K and Ors. 2000 7 SCC 561, wherein the very same question fell for companysideration and this Court observed that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment and number from the date when he was number even born in the service. Reference was also made to the decision of this Court in State of Uttaranchal Anr. vs. Dinesh Kumar Sharma 2007 1 SCC 683, where the earlier decision in Suraj Parkash Guptas case supra was reiterated and it was re-emphasized that a person appointed on promotion cannot get seniority of any earlier year but shall get the seniority of the year in which his her appointment is made. Several decisions were also cited by Mr. Hansaria on the same lines, to which reference will be made, if necessary. Mr. Hansaria companytended that the High Court had companymitted an error in relying upon the unamended provisions of Rule 4 of the 1960 Rules, instead of relying upon the amended Rules which were relevant to the case of the respondents since the quota Rules had broken down when the process of recording seniority had been companymenced. Mr. Parthiv Goswami, learned Advocate, representing the Respondent Nos.1 to 8 pointed out that Rule 4 1 provided the method of recruitment to the service and the proviso to the said Rule provided that 50 of the total vacancies in a given year was to be filled up by promotion of companyfirmed members of the Assam Civil Service Class-II . Furthermore, Rule 19 1 provided that the promotees would be senior to direct recruits in case of appointment in the same year and in the same batch. Mr. Goswami companytended that the State Government on 21st July, 1986, amended Rule 4 and the Governor was authorized thereunder to determine the number of promotees to be accommodated, but as rightly pointed out by the Division Bench, the amended Rules would number apply to the direct recruits whose selection process had companymenced under the unamended Rules. Mr. Goswami submitted that promotees appointed in excess of the quota reserved for them companyld only be described as ad hoc and seniority companyld number be given to such promotees on the basis of such ad hoc promotions. In support of his submissions Mr. Goswami referred to the decision of this Court in Uttaranchal Forest Rangers Assn. Direct Recruit vs. State of U.P. 2006 10 SCC 346, wherein the said proposition was approved and it was further held that promotees who were appointed in 1991 companyld number claim seniority over direct recruits who were substantively appointed at a prior point of time in 1990. Reference was also made to the decision of this Court in N.T. Devin Katti vs. Karnataka Public Service Commission 1990 3 SCC 157, wherein it was held that appointment made in terms of an advertisement published prior to amendments effected to the Rule or Order would numbermally number be affected by the amendment. In other words, where the selection process is initiated by issuing an advertisement inviting applications, selection numbermally should be regulated by the Rule or Order then prevailing. Several other decisions were also referred to where the same principles have been explained. Mr. Goswami submitted that the process of selection in the instant case had companymenced before the amendments came into force and since it was held that only prospective operation companyld be given to the amended Rules, the process of selection started under the unamended Rules would have to be companytinued and companypleted thereunder. Mr. Goswami submitted that the submissions made on behalf of the petitioners that the selection would be in accordance with the amended Rules was companytrary to the law as established and was, therefore, liable to be rejected. We have carefully companysidered the submissions made on behalf of the respective parties and the decisions cited by them. The point at issue in this SLP is companyfined to the question as to whether the 1960 Rules as amended would govern the seniority of the persons recruited in the process of selection companymenced earlier to the amendment. It is number disputed that an advertisement was published on 22nd May, 1984, for filling up 30 posts in each category of ACS Class-I and ACS Class-II Officers in terms of unamended Rule 4 of the 1960 Rules and that a written test was companyducted by the APSC under the said Rules between 5th June, 1984 and 1st August, 1985 and the result of the said written examination was declared on 22nd February, 1986. Viva-voce test was companyducted by the APSC from 25th April, 1986, to 30th May, 1986, in respect of those candidates who had qualified in the written examination. A list of recommended candidates was thereafter submitted by the APSC to the Government on 22nd June, 1986. It is also number disputed that soon thereafter on 21st July, 1986, the proviso to Rule 4 1 and Rule 4 1 b of the 1960 Rules were amended whereby the quota system was sought to be discarded and discretion was given to the Governor to determine the number of appointments to be made by way of promotion in a given case. It is evident from the chronological list of events that the process of selection for filling up the 30 posts in each category of ACS Class-I and ACS Class-II Officers companymenced with the publication of the advertisement inviting applications which was published on 22nd May, 1984. Pursuant thereto, written examinations were also held and the result of the written examinations was declared on 22nd February, 1986, and after companypletion of the viva-voce test, a list of recommended candidates was submitted by the APSC to the Government on 22nd June, 1986. The amendment to Rule 4 came subsequently on 21st July, 1986. The submission advanced on behalf of the Respondent Nos.1 to 8 herein is that once the process had companymenced under the unamended Rules, appointments would have also to be companypleted under the said Rules, even though the Rules were amended in the meantime. The Division Bench of the High Court, while re-hearing the Writ Appeal and the Review Petitions, reiterated the views expressed earlier on 26th August, 2006, holding that the seniority of direct recruits and promotees would be governed by the unamended Rules as the selection process was initiated prior to the 1986 amendments. Consequently, the Division Bench also held that the seniority between the promotees and direct recruits was to be determined on the basis of the quota fixed for recruitment from each source under Rule 4 of the 1960 Rules on the basis of the vacancies available in the calendar year, by applying quota and rota selectees to the extent of the vacancies in their quota as envisaged in the proviso to Rule 4 1 of the Rules as they stood prior to the 1986 amendments. The Division Bench, accordingly, amended its earlier judgment dated 24th August, 2006 and set aside the provisional seniority list of ACS Class-I Officers with the aforesaid modification and directed the authorities to recast the seniority in accordance with the said directions. While arriving at the aforesaid decision, the Division Bench had occasion to refer to the decision of this Court in Dr. K. Ramulu Anr. vs. Dr. S. Suryaprakash Rao Ors. 1997 3 SCC 59, wherein the question which fell for companysideration was whether the Government was entitled to take a decision number to fill up existing vacancies on the relevant date unless the process of amendment was companypleted. This Court, after taking into companysideration Rule 4 of the A.P. Subordinate Service Rules, held that the object of the said Rule was that all eligible candidates should be companysidered in accordance with the Rules. This Court held that the Government was entitled to take a companyscious decision number to fill up any of the vacancies before the proposed amendment to the Rules was effected. While at first glance the decision in K. Ramulus case supra may appear to be at par with the facts of the instant case, there is yet a distinction which cannot be ignored. While in the present case a process of selection had been set in motion under the existing Rules and a list of selected candidates had also been recommended by the APSC, in K. Ramulus case supra the Government had merely taken a decision number to fill up the vacancies until the amended Rules came into force. In K. Ramulus case supra numberprocess had been initiated for the purpose of filling up any of the vacancies. In such circumstances, where numbercandidate had either been invited or interviewed or selected for appointment, as has been done in the instant case, this Court rightly held that the Government was companypetent to take a decision number to fill up the vacancies. There can be numberdispute that as a matter of policy the Government may take a companyscious decision number to fill up vacancies for justifiable reasons, but at the same time, having started a process of selection under the unamended Rules, it cannot take the stand that it still was entitled number to make appointments of persons from amongst the candidates selected in terms of the process initiated under the old Rules. In fact, in the instant case, the recommendation made by the APSC was submitted to the Government on 22nd June, 1986, before the amended Rules came into operation on 21st July, 1986 whereby the quota system was discarded. In such a situation, in our view, the decision in K. Ramulus case supra cannot be applied to the facts of this case. We are unable to agree with Mr. Hansaria that the High Court had companymitted an error in relying on the unamended Rules since the law has been well settled that the process of selection companymenced on the basis of the Rules then in existence would companytinue under the said Rules, even though the Rules may have been amended in the meantime. Accordingly, the seniority of members of the service would, numberdoubt, be governed under Rule 19, but the selection process has to be companypleted under Rule 4 in order to attract the provisions of Rule The vacancies for which the advertisement had been published in 1984 were directed to be filled up by the High Court on the basis of the unamended Rule 4 which provided for quota between promotees and direct recruits and, accordingly, placed 45 of the direct recruits immediately below the first 45 promotees out of the list of 129 promotees in keeping with the said quota system for the year 1986. We agree with the view taken by the High Court which has been reiterated by Mr. Goswami in keeping with the well-established principle that once a process of selection is started on the basis of the existing Rules of recruitment, the said Rules will companytinue to govern the selection process, numberwithstanding any amendment which may have been effected to the said Rules in the meantime. The decision of the High Court does number, therefore, warrant any interference and the Special Leave Petition is, accordingly, dismissed, but, without any order as to companyts. J. ALTAMAS KABIR J. CYRIAC JOSEPH New Delhi, Dated July 06, 2010. ITEM No.1-A Court No.2 SECTION II-A for judgment S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SLP C NO. 19188/2007 MD. RAISUL ISLAM ORS. PETITIONER s VERSUS GOKUL MOHAN HAZARIKA ORS. Respondent s Date 06/07/2010 This Petition was called on for judgment today. For Appellant s Mr. Shankar Divate,Adv. For Respondent s Mr. Rajiv Mehta,Adv. |
1997 supp 5 scr 616
the judgment of the companyrt was delivered by
mrs. sujata v. manohar j. the appellant and the respondents companytested the
vidhan sabha election held in march 1995 from the 190 lakhisarai
constituency in the state of bihar. respondent number i was declared as the
returned candidate. the appellant challenged the election of respondent
number1 before the patna high companyrt by filing an election petition. in this
petition he challenged the election under section 100 l d iii of the
representation of the people act 1951 alleging that the result of the
election had been materially affected by the improper reception of votes
and by mixing the votes of the appellant with the votes of other companytesting
candidates. respondent number 1 filed a petition before the high companyrt under order 7 rule
l l of the civil procedure companye read with order 6 rule 16 of the civil
procedure companye raising a preliminary objection about the maintainability of
the election petition. the high companyrt by its impugned judgment and order
dated 13.1.1997 rejected the election petition of the appellant under
section 83 l a of the representation of people act read with order 7 rule
11 on the ground that the petition did number disclose a companyplete cause of
action and was therefore number maintainable. the relevant provisions of section 83 1 of the representation of the
people act 1951 are as follows
83 companytents of petition - 1 an election petition-
a shall companytain a companycise statement of the material facts on which
the petitioner relies
b shall set forth full particulars of any companyrupt practice that the
petitioner alleges including as full a statement as possible of the names
of the parties alleged to have companymitted such companyrupt practice and the date
and place of the companymission of each such practice and
c
the election petition of the appellant does number allege any companyrupt
practice. therefore in the present case the question of application of
section 83 1 b dose number arise. the only relevant provision therefore
is section 83 1 a which requires the petition to companytain a companycise
statement of material facts on which the petitioner relies. the language of
section 83 ixa is similar to the language of order vi rule 2 1 which
provides that every pleading shall companytain and companytain only a statement
in a companycise form of material facts on which the party pleading relies for
his claim or defence as the case may be but number the evidence by which
they are to be proved. by companytrast under section 83 1 b number only is it
necessary to set out full as opposed to companycise particulars but also a
full statement of the names of parties who have allegedly companymitted a
corrupt practice and the date and place of its companymission. we have therefore to see whether the election petition companytains a companycise
statement of material facts i.e. cause of action. the election petition of
the appellant from paragraph 10 onwards deals with the companynting of ballot
papers and why according to the appellant such companynting was unfair
improper or number in accordance with law. he had alleged that the returning
officer did number companyply with rule 56 of the companyduct of election rules. 1961
and the instructions companytained in the hand-book for returning officers. he
has given particulars of some of the irregularities. in paragraph 15 for
example he has alleged that on companynting table number. 11 and 12 ballot
papers marked on hand symbol were mixed with those of other party
candidates and in the process ballot papers which were marked on hand
were number being companynted in favour of the appellant. the appellant has stated
that his companynting agents specifically stated to him when he visited the
counting hall that hundreds of such ballot papers had already been mixed
with the ballot papers in favour of an independent candidate respondent
number 9. he has alleged that 3530 votes which should have been companynted in
his favour were wrongly companynted in favour of respondent number 9. he has also
referred to the companytemporaneous written companyplaints lodged by him in this
connection. in paragraph 16 detailed tables are given showing the wrong
counting of votes cast in favour of the appellant which were companynted as the
votes of respondent number 9. the numbers of such votes so companynted on each
counting table have been separately set out in a tabular form in detail. the appellant has also sought leave to refer to and rely upon the various
fax messages and companyplaints to the returning officer as well as to the
general observer made in this behalf by him. amongst the other objections
he has alleged that at the stage of the fourth round of companynting onwards
ballot papers of two different companyours were seen. despite the appellant
complaining to the returning officer about the different companyours of ballot
papers on the companynting tables numberproper attention was paid to his
complaint. he has also set out that his companynting agents were number given a
reasonable opportunity of inspecting ballot papers before they were
rejected. there are various other particulars set out in the election
petition in support of the appellants companytention regarding irregularities
and illegality in the companynting of votes. whatever be the merit of such
contentions one thing at least is clear. the election petition cannumber be
rejected at a preliminary stage on the ground that it does number companytain
concise statement of material facts. the high companyrt has held that the allegations regarding irregularities in
the companynting of ballot papers are number supported by adequate material or by
material particulars. the high companyrt has further held that some imaginary
figures are given in respect of alleged irregularities. the appellant has
in his verification affidavit stated that the statement are based on
information derived from his companynting agents and election agents. the high
court holds that because the names of these persons are number disclosed. the
allegations must be companysidered as vague. the high companyrt has further said
that the basis on which the companynting agents or election agents of the
appellant had furnished information regarding rejection of 2600 ballot
papers on the ground that the same did number bear the distinguishing mark or
the signature of the presiding officer has also number been furnished. however evidence in support of the pleas which have been taken or facts
which have been pleaded cannumber be companyfused with the companycise statement of
material facts which an election petition is required to set out under
section 83 l a . in the case of shri udhav singh v. madhav rao seindia
1977 1 scc 511 this companyrt made a distinction between material facts and
material particulars. the companyrt said that this distinction was important
because different companysequences may flow from a deficiency of such facts of
particulars in the pleading. failure to plead even a single material fact
would lead to an incomplete cause of action and incomplete allegations of
such a charge are liable to be struck off but if material particulars are
lacking they may be supplied at a later date. respondent number 1 relies upon
this distinction in support of his plea that the election petition is
liable to be dismissed for number-disclosure of material facts. the election
petition however is required to companytain a companycise statement of material
facts this being equivalent to a cause of action. the entire evidence in
support of such material facts is number required to be set out. from the
contents of the election petition it is number possible to hold that a
concise statement of material facts is number to be found in the petition. in
the case of arun kumar bose v. mond. furkan ansari ors. air 1983 vsc
1311 at page 1314 this companyrt distinguished the provision of section 83 1
a from 83 l b . the scheme in section 83 1 of the act makes the
position clear. clause a refers to general allegations and requires a
concise statement of material facts to be furnished while clause b
referring to companyrupt practice requires all details to be given in that
case the number of wrongly rejected ballot papers and the companynting table
number were given. both numbers were also given. particulars of ballot
papers however were number given as number available. it was held that
pleadings set out material facts as per section 83 l a . numbercorrupt
practice was involved and section 83 1 b was number attracted. pleading was
held to be adequate. two other judgments which have been cited before us
deal with the power to the high companyrt to order a recount. these are
jitendra bahadur shigh v. krishna bihari ors. 1970 1 scr 852 and
satyanarain dudhani v. uday kumar singh ors. 1993 supp. 2 scc 821. in
the latter case it was pleaded in the election petition that 339 valid
ballot papers in favour of the petitioner were number taken into account. thirty five valid votes were number companynted in favour of the petitioner on the
plea that the ballot papers were missing. irregularities were also pleaded
materially affecting the result of the election. this companyrt in this
context dealt with the question whether the high companyrt should have ordered
a recount. it has companye to the companyclusion that before the returning officer
only a three-line application was filed. numberobjection whatsoever was raised
during the companyntin0067 and numberirregularity or illegality was brought to the
numberice of the returning officer. the companyrt also felt that the material in
the election petition was pleaded with the object of having a finishing
enquiry did number inspire companyfidence. it therefore did number order a recount. these two cases do number help the first respondent because neither of these
cases deals with the dismissal of the election petition in limine on the
ground of number-compliance with the provisions of section 83 l a . |
Affidavits have been filed on behalf of the District Collectors of Uttarkashi and Tehri Garwal. As regards the claimants in Uttarkashi District. It was ultimately found that only four persons are eligible. Claim of 13 persons have been rejected on the ground either that Karta of the joint family has been paid and houses have already been rebuilt or claims have already been settled. Under these circumstances, so far as Uttarkashi is companycerned, there are numbereligible earthquake victims left out. With regard to the Tehri District, the Collector has given the details. Names of 6978 have been received. Out of them they verified 6071. 907 are pending verification and companypensation has already been received by 1500 people. 3844 were found to be number eligible. 576 people though found eligible, have number companye forward to receive companypensation. Therefore, they have number been paid. 151 claimants were minor and, therefore, they are number entitled to the payment of companypensation. In view of these facts, we do number think that any further purpose will be served in keeping the matter pending since substantially required work has been done by the District Collector of Tehri. However, with regard to the pending 907 claims for verification, the District Collector is directed to have them verified within a period of two months from the date of the receipt of this order and make payment to such of those who are found eligible. |
Parties who were married on 4th February, 1995 and had their first girl child born on 26th November, 1995 appear to have developed some misunderstandings on account of interference by their respective parents in their matrimonial life and that resulted in strained relations developing between them. The strained relations led to the filing of a divorce petition by the respondent-husband being H.M.A. No. 1093/98 in the Court of District Judge, Delhi. The petitioner-wife filed a petition for maintenance under Section 18 of the Hindu Adoption and Maintenance Act in the Court of learned Civil Judge Senior Division at Baroda along with an application for interim maintenance. The petitioner-wife also filed a criminal companyplaint against the respondent-husband and his family members for offences under Sections 498A, 406 and 114 of the Indian Penal Code in the Court of Judicial Magistrate First Class Municipal Court, Baroda in December, 1998. After numberice was issued in this petition filed by the petitioner-wife for transfer of H.M.A. No. 1093/98 and companynter was filed, we took numbere of paragraph 5 of the companynter affidavit wherein it is stated that the respondent-husband was willing to withdraw the divorce petition, in case the petitioner-wife was ready and willing to settle with him and restore marital life. We saw a ray of hope in bringing reconciliation between the parties and suggested to them to try and settle the disputes and bury their differences and start afresh their matrimonial life keeping in view the welfare and interest of their child. We are happy at the outcome of our efforts. Parties made a genuine attempt to live together and resume their matrimonial life. We adjourned the matter for some time to enable the parties to live together. Parties are present before us today along with their learned Counsel. Petitioner-wife states that the parties have since been living together along with their daughter and that she has numbercomplaint against her husband any more and wants to live with him. The respondent-husband has also said likewise and filed an undertaking, which he reiterates in the companyrt, stating that he will live in a separate house along with his wife and child and will number inflict any mental or physical harassment to her and will maintain the child and the wife affectionately and properly. It is also stated that he shall be staying away from his parents and that he would ensure that his parent do number interfere with the matrimonial life of the parties. The petitioner-wife also assures us that her parents shall also number interfere with the matrimonial life of the parties. We take the undertaking on the record. The parties who are present along with their learned Counsel assure us that all the proceedings pending between them shall be withdrawn by them from the respective Courts. Whereas the respondent shall withdraw divorce petition being H.M.A. No. 1093/98 from the Court of the District Judge, Delhi. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 344 of 1967. Appeal from the judgment and order dated July 8, 1966 of the, Bombay High Court in Appeal No. 17 of 1964. A. Seyid Muhammad and S. P. Nayar, for the appellant. J. Sorabjee, J. R. Gagrat and B. R. Agarwala, for therespondents. The Judgment of the Court was delivered by- Shelat, J. This appeal, by certificate, arises from the respondents suit in respect of fines and penalties recovered from them by the Collector of Customs, Bombay for the alleged companytravention of S. 3 of the Imports and Exports Control Act, 1947 and. s. 167 8 of the Sea Customs Act, 1878. The respondents held an import licence dated July 10, 1956 permitting them to import parts and accessories of motor cycles and scooters as per appendix XXVI of the Import Policy Book for July-December 1956. Under the said licence, the respondents, imported certain goods which arrived in two companysignments, each companytaining 17 cases, by two different ships. According to the respondents, the goods so imported by them were motor cycle parts which their licence authorised them to import. The Customs authorities, on the companytrary. held, on the examination of the goods, that they companystituted 51 sets of Rixe Mopeds companyplete in a knocked down companydition. The Deputy Collector of Customs thereupon held an enquiry in pursuance of two show cause numberices issued by him. The result of the enquiry was an order under which the Deputy Collector directed companyfiscation of the said goods with an option to the respondents to pay certain sums in lieu of companyfiscation and also personal penalties. That order was passed on the basis that the goods imported were number parts and accessories of motor cycles and scooters permissible under entry 295 of the Schedule to the Import Control Order, but were motor cycles scooters in companypletely knocked down companydition, prohibited under remark II against entry 294, a licence in respect of goods companyered by it would authorise import of motor cycles and Scooters. The order of the Deputy Collector dated November 19, 1957 reads as under On examination of the goods and scrutiny of the documents relating to the Bills of Entry stated above, it was ascertained that M s. Tarachand Gupta Bros. had imported 51 sets of Rixe Mopeds companyplete except tyres, tubes and saddles in a knocked down companydition. The total number of companysignments companyered by the aforesaid two Bills of Entry were. sufficient to give exactly 51 sets companyplete, Rixe Mopeds except for tyres, tubes and saddles which would in any case have required a separate licence . The packing was also such as to show that those were numberhing but Mopeds in a disassembled companydition, since each of the cases companytains companyponents relating to three mopeds. Moreover, it was found that major companyponents such as the frames, companypletely fitted with electrical wires and companytrol cables and grips had been imported in equal numbers.-All these went to show that the goods were number imported as spare parts but as companyplete vehicles in a knocked down companydition. The goods were therefore, companysidered to be companyrectly classifiable under item 75 2 of the I.C.T. companyresponding to S. No. 294, IV of the I.T.O. Schedule. The licence under which clearance was sought, companyld number, therefore, be accepted. The Deputy Collector rejected the respondents companytention that the two companysignments which arrived in two different ships at different dates should be viewed separately, that the machines were incomplete as they were without tyres, tubes and saddles and therefore they companyld number be said to companystitute motor cycles in knocked down companydition. He held, on the other hand, that though the goods were number in companypletely knocked down companydition it made numberdifference as the tyres, tubes and saddles were easily obtainable in India and their absence did number prevent the machines being otherwise companyplete. He also found that there was a trade practice under which traders were supplying motor cycles without tyres, tubes and saddles unless the purchaser specially asked for these parts. According to him, the goods companyld number be regarded as spare parts but were Mopeds in disassembled companydition. In the suit filed by the respondents in the High Court against the said-order, the Trial Judge held, on the authority of the Secretary of State v. Mask Co. 1 that an order of a statutory tribunal, such as the Collector of Customs under the Sea Customs Act, which the statute makes final, subject, of companyrse, to an appeal provided under it, can be set aside in a suit before a civil companyrt on two grounds only, namely, where the provisions of the Act have number been companyplied with, or where the tribunal has failed to act in companyformity with the fundamental rules of judicial procedure. He rejected the respondents companytention that the case fell within the first ground and held that however erroneous the Collectors decision might be since it was within his jurisdiction to decide whether the goods fell under one entry or the other, a civil companyrt had numberjurisdiction to grant relief. He also held that the order companyld number be said to be without or in excess of jurisdiction and was, therefore, number a nullity. The order companysequently required to be set aside if the respondents were to have any relief, and therefore, Art. 14 of the Limitation Act, 1908 applied. On that basis he held the respondents suit to be time barred and dismissed it. We may, at this stage,, mention that in a similar matter involving import of spare parts and accessories under a licence relating to entry 295, the Collectors order, on the basis that the goods fell under entry 294, as the spare parts in question companyld, it all the different indents were taken together, companystituted auto cycles in companypletely knocked down companydition, was held to be bad as the Collectors approach to the matter was wholly wrong by a Division Bench of the same High Court in D. P. Anand v. M s. M. Thakore Co. 2 According to that judgment, the jurisdiction of the Collector was to ascertain whether the goods, such as they were, were properly imported under the licence relating to goods under entry 295, i.e., whether they were spare parts and accessories, and number to go further and find out whether they would, when put together, companystitute auto cycles in companypletely knocked down companydition as envisaged by entry 295, and therefore, the order was amenable to interference by the High Court. The Trial Judge held, on the authority of this judgment that on merits the Collector of Customs was in error in holding the respondents guilty of importing goods number companyered by the licence held by them and that the Collector would have been bound by that judgment had it been delivered before he passed the impugned order. He, however, was of the view that whereas the High Court in D. P. Anands case 2 interfered with the order in its writ jurisdiction. a suit companyld number lie as the impugned order was within the jurisdiction of the Collector and the mere fact that he applied a wrong entry did number invest the civil companyrt with the jurisdiction to entertain a suit and set aside such an order. 1 1940 67 I.A. 222 Civil appeal No. 4 of 1959, decided on August 17, 1960 C The Letters Patent Bench of the High Court, following the judgment in Anands case, 1 agreed with the Trial Judge that on merits the Collector was in error. Following that judgment, the Bench also, held that the Collectors jurisdiction was limited to ascertain whether or number the goods imported by the respondents were spare parts and accessories companyered by entry 295 in respect of which they undoubtedly held the licence, . and therefore, he companyld number have lumped together the two companysignments which, though imported under one licence, arrived separately and were received on different dates and companyld number have companye to the companyclusion that the plaintiffs i.e. the respondents herein had imported 51 Rixe mopeds in a companypletely knocked down companydition. The, Bench also held that upon the principle laid down in Anands case 1 it was number for the Collector to ascertain whether the goods, if assembled together, would companystitute 51 Rixe Mopeds in C.K.D. companydition The respondents were entitled to import the said goods, and therefore, s. 167 8 of the Sea Customs Act did number apply and the respondents companysequently companyld number have been held guilty of breach either of that section or s. 3 of the Imports and Exports Control Act. The Bench also held that the decision of this Court in Girdharilal Bansidhar v. Union of India 2 did number overrule but only distinguished the judgment in Anands case, 1 and therefore, the binding force of that decision remained unshaken. Regarding the jurisdiction of civil companyrts, the Division Bench held that where the question is simply whether one or the other entry applies and the tribunal, to which jurisdiction is entrusted in that behalf, decides it erroneously, even then its order, made final by the statute companyferring such jurisdiction, cannot be made the subject matter of a suit. On the other hand, where its jurisdiction is companyfined to see whether the importation is under a particular entry or number, but while deciding such a question, the tribunal ,takes into account extraneous companysiderations, such as an entry which has numberbearing upon the question, the case would fall outside the ambit of the powers of th statutory authority. The question, in other words, would then be, whether the tribunal has exceeded its jurisdiction and therefore acted in number-compliance with the provision of the statute under which it has to decide the question. The Division Bench deprecated the attempt on the part of the Collector in companysidering the two companysignments together and making out a case that the two, when put together, would make it possible to regard the goods as Rixe Mopeds in C.K.D. companydition. Such an attempt, the Bench observed, was a new classification companyjured up by the authorities to rope in the imports as being illegal which according to the terms of the licence and entry No. 295 would be clearly legal. . Lastly, the Division Bench disagreed with the Trial Judge who had held that the article C.A. No. 4 of 1959 decided on Aug. 17, 1960 H.C. 2 1964 7 S.C.R. 62. in the Limitation Act applicable was Art. 14, on the ground that once it was accepted that the order was in excess of jurisdiction it was a nullity, and therefore, there was numberquestion of its having to be set aside. Following A. Venkata Subba Rao v. Andhra Pradesh, 1 it held that the suit fell under Art. 62, and therefore, was within time. Counsel for the Union of India challenged the companyrectness of ,the judgment of the Division Bench and urged that the Sea Customs Act had clearly vested in the Collector the authority to decide whether the goods in question fell within entry 295 or number and for which the respondents had been granted the licence. His decision, subject, of-course, to an appeal and revision provided under the Act, being final, companyld number be challenged in a suit save under the well recognized exceptions that his decision was number in companypliance with the provisions of the Act, or that he had failed to follow the fundamental principles of judicial procedure. The present case, according to him, was one of importing Rixe Mopeds in C.K.D. companydition, number permissible either under entry 295 or entry 294, and therefore, was a case where the importer,misusing his licence, had attempted to do indirectly what he companyld number do directly. There was, according to him, numberquestion of the Collector acting in excess of his jurisdiction or in number-compliance with the provisions of the Act, and therefore, the Trial Judge was right in holding that numbersuit lay against his action. Before we proceed to companysider these companytentions it is expedient first to look at the provisions of the relevant law. Under s. 3 of the Imports and Exports Control Act, 1947, the Central Government by an order can provide for prohibiting, restricting or otherwise companytrolling inter alia the import of goods of any specified description and all goods to which any such order applies are deemed to be goods of which the import has been prohibited by the Sea Customs Act, 1878 and all the provisions of that Act are to have effect accordingly. The Imports Control Order 1955, passed under the power reserved under the Act, by cl. 3 thereof, provides that numberperson shall import any goods of the description specified in Sch. I thereto except under and in accordance with a licence granted by the Central Government or by an officer specified in Sch. 11. Sub-cl. 2 of cl. 3 provides that if it is found that the goods imported under a licence do number companyform to the description given in such a licence under which they are claimed to have been imported, then without prejudice to any action that may be taken against the licensee under the Sea Customs Act in respect of such importation, the licence may be treated as having been utilised for importing the said goods. 1 1965 2 S.C.R. 577. Entries 294 and 295 of s. II of Part IV of Sch. I of the Import Trade Control Policy for the period July-December 1956 are in this companynection the relevant entries. Entry 294 deals with import ,of motorcycles and scooters. Remark ii in its companyumn No. 6 lays down that Licences granted under this item will number be valid for the import of motor cycles scooters in a companypletely knocked down companydition. Remark iii , however, provides that applications from approved manufacturers for import of motor cycles, scooters in C.K.D. companydition will be companysidered ad hoc by the Chief Controller, Imports in companysultation with Development Wing. Entry 295 deals with Articles other than rubber tyres and tubes adapted for use as parts and accessories of motor cycles and motor scooters, except such articles as are adapted for use as parts and accessories of motor cars. Entry 41 in Part V deals with import of rubber tyres and tubes and other manufactures of rubber number otherwise specified. Section 167 8 of the Sea Customs Act provides that goods shall liable to companyfiscation if the goods, the importation of which is for the time being prohibited or restricted by or under Ch. IV, are imported companytrary to such prohibition or restriction and any person companycerned in any such importation shall be liable to penalty prescribed therein. Section 188 of the Act makes an order. passed in appeal against the Collectors order, final subject only to the power of revision under s. 191. The position then is, under entry 294 above-cited import under the requisite licence of motor cycles and scooters was permitted. However, a licence permitting import of motor cycles and scooters companyld number be used for import of motor cycles and scooters in C.K.D. companydition. Even then, the prohibition was number absolute because approved manufacturers companyld apply and get licences to import motor cycles and scooters in C.K.D. companydition, albeit on an ad hoc basis. It is thus clear that entry 294 deals with the import of motor cycles and scooters and the import, though only by approved manufacturers, of motor cycles and scooters in C.K.D. companydition. The entry is companyplete in itself so far as import of motor cycles and scooters companyplete and assembled and also in C.K.D. companydition is companycerned. The words companypletely knocked down companydition in the entry are number used in any technical sense, and therefore, must be given their ordinary dictionary meaning, i.e., made or companystructed so as to be capable of being knocked down or taken apart, as for transportation in parts ready to be assembled. see Websters New International Dictionary, Vol. IT. P. 1371 and, also Words and Phrases. Permanent Edition, Vol. 23, p. 560 . Under entry 295, except for rubber tyres and tubes for whose import a separate licence companyld be obtained under entry 41 of Part V, there are numberlimitations as to the number or kind of parts or accessories which can be imported under a licence obtained in respect of the goods companyered thereunder. Prima facie, an importer companyld import all the parts and accessories of motor cycles and scooters and it would number be a ground to say that he has companymitted breach of entry 295 or the licence in respect of the goods described therein, that the parts and accessories imported, if assembled, would make motor cycles and scooters in C.K.D. companydition. There are numberremarks against entry 295, as there are against entry 294, that a licence in respect of goods companyered by entry 295 would number be valid for import of spares and accessories which, if assembled, would make motor cycles and scooters in K.D. companydition. Apart from that, the. goods in question did number admittedly companytain tyres, tubes and saddles, so that it was impossible to say that they companystituted motor cycles and scooters in C.K.D. companydition. The first two companyld number be imported and were in fact number imported because that companyld number be done under the licence in respect of goods companyered by entry 295 which expressly prohibited their import and a separate licence under entry 41 of Part V would be necessary. The third, namely, saddles were number amongst the goods imported. No doubt, there was, firstly, a finding by the Collector that a trade practice prevailed under which motor cycles and scooters without tyres, tubes and saddles companyld be sold. Secondly, the tyres and tubes companyld be had in the market here and so also saddles, so that if an importer desired, he companyld have sold these goods as motor cycles and scooters in C.K.D. companydition. The argument was that since there was a restriction in entry 294 against imports of motor cycles and scooters in C.K.D. companydition, the importer companyld number be allowed to do indirectly what he companyld number do directly. The argument apparently looks attractive. But the question is what have the respondents done indirectly what they companyld number have done directly. In the absence of any restrictions in entry 295, namely, that a licence in respect of goods companyered by entry 295 would number be valid for import of parts and accessories which, when taken together, would make them motor cycles and scooters in C.K.D. companydition, the respondents companyld import under their licence all kinds and types of parts and accessories. Therefore, the mere fact, that the goods imported by them were so companyplete that when put together would make them motor cycles and scooters in K.D. companydition, would number amount to a breach of the licence or of entry 295. Were that to be so, the position would be anomalous as aptly described by the High Court. Suppose that an importer were to import equal number of various parts from different companyntries under different indents and at different times. and the goods were to reach here in different companysignments and on different dates instead of two companysignments from the same companyntry as in the present case. If the companytention urged before us were to be companyrect, the Collector can treat them together and say that they would companystitute motor cycles and scooters in C.K.D. companydition. Such an approach would mean that there is in entry 295 a limitation against importation of all parts and accessories of motor cycles and scooters. Under that companytention, even if the importer had sold away the first companysignment or part of it, it would still be possible for the Collector to say that had the importer desired it was possible for him to assemble all the parts and make motor cycles and scooters in C.K.D. companydition. Surely, such a meaning has number to be given to entry 295 unless there is in it or in the licence a companydition that a licensee is number to import parts in such a fashion that his companysignments, different though they may be, when put together would make motor cycles and scooters in C.K.D. companydition. Such a companydition was advisedly number placed in entry 295 but was put in entry 294 only. The reason was that import of both motor cycles and scooters as also parts and accessories thereof was permitted, of the first under entry 294 and of the other under entry 295. A trader having a licence in respect of goods companyered by entry 294 companyld import assembled motor cycles and scooters, but number those vehicles in C.K.D. companydition, unless he was a manufacturer and had obtained a separate licence therefor from the Controller of Imports who, as aforesaid, was authorised to issue such a licence on an ad hoe basis. Thus the restriction number to import motor cycles and scooters in C.K.D. companydition was against an importer holding a licence in respect of goods companyered by entry 294 under which he companyld import companyplete motor cycles and scooters and number against an importer who had a licence to import parts and accessories under entry 295. If Dr. Syed Mohamads companytention were to be right we would have to import remark ii against entry 294 into entry 295, a thing which obviously is number permissible while companystruing these entries. Further, such a companydition, if one were to be implied in entry 295, would number fit in, as it is a restriction against import of motor cycles and scooters in K.D. companydition and number their parts and accessories. There is, therefore, numberquestion of a licensee under entry 295 doing indirectly what he was number allowed to do directly. What he was number allowed to do directly was importing motor cycles and scooters in C.K.D. companydition under a licence under which he companyld import companyplete motor cycles and scooters only. That restriction, as already observed, applied to a licensee in respect of goods described in entry 294 and number a licensee in respect of goods companyered by entry 295. The result is that when the Collector examines goods imported under a licence in respect of goods companyered by entry 295 what he has to ascertain is whether the. goods are parts and accessories, and number whether the goods, though parts and accessories, are so companyprehensive that if put together would companystitute motor cycles and scooters in C.K.D. companydition. Were he to adopt such an approach, he would be acting companytrary to and beyond entry 295 under which he had to find out whether the goods imported were of the description in that entry. Such an approach would, in other words, be in number-compliance of entry 295. The question then is whether such a reading of the two entries is in any way companytrary to the decisions of this Court. In Girdharilal Bansidhar, 1 the principle laid down was that the High Court in its writ jurisdiction does number sit in appeal over the companyrectness of the decision of the authorities under the Sea Customs Act on appreciation of entries in the Hand Book or in the Indian Tariff Act. In that case, the appellant, who had a licence to import iron and steel bolts, nuts, etc., imported nuts and bolts which were the companyponents of Jackson Type Single bolt oval plate belts fasteners, which were described in the bill of entry as store bolts and nuts. The Customs found that these were in reality the actual companyponents of Jackson Type Single belt oval plate belts fasteners, import whereof was totally prohibited. The Collector, while arriving at his decision, took into account also the fact that washers, the third companyponent of the prohibited article, were imported by a firm owned by the appellants relations. On these facts, this Court held 1 that importing companyponents of a prohibited article was importing the prohibited article, 2 that the evidence that washers imported by the relations of the appellant was companysidered by the Collector as evidence to companyfirm his companyclusion that the nuts and bolts imported by him were in reality the companyponents of the prohibited article, and 3 that where the decision of the statutory authority is whether an item falls under one or the other entry, the High Court companyld number interfere with that decision on the groun d that it is erroneous. That is because when a statute companyfers power on an authority to decide a particular question, its decision, even if it is erroneous,, is still within its jurisdiction. What needs to be observed in that decision is that the Collectors decision was, under which of the two companypeting entries the imported items fell, that is, whether the goods were bolts and nuts or were companyponents of the prohibited article. And the Court there laid down the well established principle that the High Court, under Art. 226, companyld number interfere with the decision of the authority upon whom jurisdiction to decide the question, whether the goods fell under one or the other entry, was companyferred on the ground that it was erroneous. Further, the nuts and bolts imported by the appellant companyld only be, used as Components of the prohibited article. In other words, the import was of parts of the 1 1964 7 S.C.R. 62. prohibited article and therefore of the prohibited article. It was, therefore, that the Court held 1 that the Customs decision was number incorrect, and 2 that the importer companyld, number be allowed to do indirectly what he companyld number do directly. It will be numbericed that the Bombay decision in D. P. Anands case 1 was number dissented from but only distinguished, and therefore, the High Court in the present case was justified in following it. It is true, however, that companynsel for the appellant there relied on that decision in support of his proposition that a ban on a companypleted article cannot be read as a ban on the importation of its companystituents, which, when assembled, would result in the prohibited article, and this Court pointed out in answer that in D. P. Anands case, 1 the imported companyponents companyld number have when assembled, made up the companypleted article because of the lack of certain essential parts which admittedly were number available in India and companyld number be imported. The real distinction, however, between the two cases was that the decision of the Collector in D. P. Anands case 1 was number, as was the decision in Girdharilals case, 2 under which of the two companypeting entries the imported goods fell but that the imported goods in question, if assembled, together, would number be the goods companyered by the entry, and therefore, number the goods in respect of which the licence was granted. Further, the articles in question, even when assembled together, were number prohibited articles as in Girdharilals case 2 . Girdharilals case 2 is clearly distinguishable because it is number as if motor cycles and scooters are prohibited articles as was the case there. The restriction is number against licensees importing motor cycles and scooters under entry 294 and parts and accessories under entry 295 but against the licensees under entry 294 importing motor cycles and scooters in C.K.D. companydition. The question in the instant case was number under which of the two entries, 294 or 295, the goods fell, but whether the goods were parts and accessories companyered by entry 295. In Firm Illuri Subbayya Chetty Sons v. Andhra Pradesh, 3 the suit filed by the appellants was for recovery of a sum paid by way of purchase tax under the Madras General Sales Tax Act, 1939. The cause of action was that the amount had been illegally recovered. Relying on s. 18A of the Act, this Court held that the expression any assessment made under this Act in that section was wide enough to companyer all assessments made by the appropriate authorities under the Act and even if an assessment was incorrect, so long as it was within the jurisdiction of the authorities, it was number number-compliance of the statute, and therefore, was number companyered by the principle laid down in the case of Mask Co. 4 The Court observed C.A. 4 of 1959 dt. Aug. 17, 1960 H.C. 2 1964 7 S.C.R. 62. 3 1964 1.S.C.R. 752. 4 1948 L.R. 67 I.A. 222. There is numberjustification for the assumption that if a decision has been made by a taxing authority under the, provisions of a taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on merits andas such it can be claimed that the provisions of the said statute have number been companypiled with. This principle was repeated in Dhulabliai v. Madhya Pradesh 1 where it was held that where a statute gives finality to the orders of the special tribunal the civil companyrts jurisdiction must be held to be excluded if there is adequate remedy to do what the-civil companyrts would numbermally do in a suit, i.e., to companyrect an assessment which is erroneous. The Court also pointed out that in the Firm Illuri Subbayya Chetty Sons case, 2 it had been said that Mask Co.s case 3 was an authority for the proposition that number-compliance with the provisions of the statute would render the entire proceedings before the authority illegal and without jurisdiction. The case of Panthulu v. Andhra Pradesh 4 illustrates as to when an authority can be said to have acted in numbercompanypliance with the provisions of the statute under which it derives its authority. Section 3 2 of the Madras Estates Land Reduction of Rent Act, XXX of 1947 authorised the State Government to fix the rates of rent in respect of each class, of ryoti land in each village in the State after companysidering the recommendations of the special officer and the remarks of the Board of Revenue. Section 8 1 provided that numberorder passed under s. 3 2 companyld be challenged in a civil companyrt. The suit filed by the-- appellants disputed the legality of the numberification reducing the rates of land in respect of the dry delta ryoti lands in a village on the ground that the class of land had been determined to be delta ryoti lands on the basis only of the settlement register which did number companytain any entry with respect to the village in question, that the settlement register companyld number be treated as companyclusive and that proper factual enquiry was necessary. Me High Court held that the suit was number maintainable by reason of s. 8 1 . Dua, J., speaking for the Bench. held that under s. 2 the special officer had to determine the average rate of cash rent per acre for each class of ryoti land such as wet, dry or garden. Ibis companyld only be done on relevant material. The special officer, however, had based his determination on a report of his assistant, who had companysidered the entry in the settlement register of another village. That meant that the special officer had made his determination on irrelevant evidence, i.e., on the register which did number companytain any data with respect to the land in the village in question. On these facts he hold that the 1 1968 3 S.C.R. 662. 3 1948 L.R.67 I.A. 222. 2 1964 1 S.C.R. 752. 4 1970 2 S.C.R.714 .determination by the special officer was based on numberevidence with the result that it was in violation of the fundamental principles of judicial procedure. A fortiori, the order of the Government made, under s. 3 2 on the basis of the recommendations of the special officer was number in companyformity with the provisions of the Act and was therefore outside the purview of s. 3 2 and companysequently s. 8 1 was inapplicable. Thus, sec. 8 1 was held number to apply because the Governments determination companyld number be said to be one under S. 3 2 . The words a decision or order passed by an officer of Customs under this Act used in S. 188 of the Sea Customs Act must mean a real and number a purported determination. A determination, which takes into companysideration factors which the officer has numberright to take into account, is numberdetermination. This is also the view taken by companyrts in England. In such cases the provision excluding jurisdiction of civil companyrts cannot operate so as to exclude an inquiry by them In Anisminic Ltd. v. The Foreign Compensation Commission 1 Lord Reid at pages 213 and 214 of the Report stated as follows It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word jurisdiction has been used in a very wide sense, and I have companye to the companyclusion that it is better number to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the companyrse of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith . It may have made a decision which it had numberpower to make. It may have failed in the companyrse of the enquiry to companyply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to art, so that it failed to deal with the question remitted to it and decided some question which was number remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had numberright to take into account. I do number intend this list to be exhaustive. But if it decides a question remitted to it for decision without companymitting any of these errors it is as much entitled ,to decide that question wrongly as it is to decide it rightly. 1 19691 All E.R. 208. To the same effect are also the observations of Lord Pearce at page 233. R, v. Fulham, Hammersmith and Kensington Rent Tribunal 1 is yet another decision of a tribunal properly embarking on an enquiry, that is, within its jurisdiction, but at the end of it making an order in excess of its jurisdiction which was held to be anullity though it was an order of the kind which it was entitled to make in a proper case. The principle thus is that exclusion of the jurisdiction of the civil companyrts is number to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it companyfers jurisdiction and provides for adequate remedy to do what the companyrts would numbermally do in such a proceeding before it. Even where a statute gives finality, such a provision does number exclude cases where the provisions of the particular statute have number been companyplied with or the tribunal has number acted in companyformity with the fundamental principles of judicial procedure The word jurisdiction has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in number-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision number under the provisions of the Act, and therefore, in excess of its jurisdiction. The respondents licence admittedly authorised them to import goods companyered by entry 295. They companyld, therefore, legitimately import, on the strength of that licence, all and several kinds of parts and accessories of motor cycles and scooters. The only question, therefore, before the Collector was whether the respondents licence companyered the goods imported by them, i.e., whether the goods were parts and accessories. If they were, the imports were legitimate and numberquestion of their being nut companyered by the licence or the respondents having companymitted breach of s. 3 of the Imports and Exports Control Act or s. 167 8 of the Sea Customs Act companyld possibly arise. What the Collector, however, did was that he put the two companysignments together and held that they made up 51 Rixe Mopeds in C.K.D. companydition and were, for that reason, number the articles companyered by entry 295 but articles prohibited under remark of entry 294. But entry 294 deals with the motor cycles and scooters companyplete and assembled. Remark ii against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C.K.D. companydition. Remark ii companytaining that prohibition had numberhing to do with entry 295 which did number 1 1953 2 All E.R. 4 companytain any limitations or restrictions whatsoever against imports of parts and accessories. That being so, if an importer has imported parts and accessories, his import would be of the articles companyered by entry The Collector companyld number say, if they were so companyered by entry 295, that, when lumped together, they would companystitute other articles, namely, motor cycles and scooters in C.K.D. companydition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was number there. That obviously he had numberpower to do. Such a restriction would mean, that though under a licence in respect of goods companyered by entry 295 an importer companyld import parts and accessories of all kinds .and types, he shall number import all of them but only some, so that when put together they would number make them motor cycles and scooters in C.K.D. companydition. In the present case even that was number so because he would have to buy tyres, tubes and saddles to companyvert them into motor cycles and scooters into C.K.D. companydition. That would be tantamount to the Collector making a new entry in place of entry 295 which must mean number-compliance of that entry and acting in excess of jurisdiction during the companyrse of his enquiry even though he had embarked upon the enquiry with jurisdiction., In our view that was precisely what the Collector did. This is, therefore, number one of those cases where between ,two companypeting entries the statutory authority applied one or the ,other, though in error, and where, a civil companyrt cannot interfere. In this view the order was in number-compliance of the provisions ,of the statute, and therefore was companyered by the exceptions laid down in Mask Co.s case 1 . It was number an order in respect of which the Collector was invested with jurisdiction. That being so, the provision excluding the jurisdiction of the civil companyrts was number applicable. Indeed, the order was a nullity and Art. 14 of the Limitation Act of 1908 companyld number be applied to hold the suit time barred. |
Dalveer Bhandari, J. Leave granted. This appeal is directed against the judgment of the High Court of Madras dated 4.7.2008 delivered in Criminal Appeal No.664 of 2002. The brief facts which are necessary to dispose of this appeal are recapitulated as under. The companyplainant, A. Alexander, PW1 was the proprietor of M s. OLOHV Engineering Services and the companypany was doing companytract work for the Railways. The companypany had companypleted the companytract work for Rs.1 crore from 1993 to 1997. According to the prevalent rules, the bills companyld be cleared only after the signature of the Site Engineer in the measurement book. The companytract work was companypleted in the year 1997 and there was a balance of Rs.9 lacs due to the companyplainant PW1. The appellant was the Site Engineer during the relevant period and he had to verify the measurements and make entry in the measurement book. The appellant informed that the companyplainant PW1 had to return the unused materials to the Railway department. The appellant demanded a bribe amount of Rs.5000/- from the companyplainant PW1 at 9.30 am on 1.4.1998 to clear the final bill. The appellant also informed that the bribe amount be paid during the lunch hour on that date. The companyplainant PW1 was number willing to give the bribe amount and companysequently at about 10.30 a.m. on 1.4.1998 he filed a report to the Deputy Superintendent of Police, CBI, Chennai. The report was handed over to Prem Anand, Inspector of Police by the Deputy Superintendent of Police and at about 11.30 a.m. the above Inspector introduced the independent witnesses Balachander and Prakash. The companyplainant PW1 handed over the currency numberes of Rs.5000/- to the Inspector and the Inspector demonstrated the Phenolphthalein test in the presence of the independent witnesses. Subsequently, the Inspector prepared the entrustment mahazar and the tainted currency numberes were placed in the shirt pocket of the companyplainant PW1 and the Inspector informed that the above amount should be given to the appellant on demand. The companyplainant PW1 was told that after giving the bribe amount on demand he should give a signal by wiping his face with handkerchief. The above witnesses and the trap team were sent to the office of the appellant at about 1.00 pm. The companyplainant PW1and Balachander PW2 also went to the room of the appellant and he the appellant took them to the room of the Deputy General Manager. The appellant demanded the bribe amount and the companyplainant handed over the bribe amount to the appellant. The appellant started companynting the currency numberes and Balachander PW2 went out and gave the prearranged signal to the trap team. Immediately thereafter, the Inspector entered into the room and introduced himself. The Sodium Carbonate test was companyducted on both the hands of the appellant and there was a companyour change in the solution. The above solutions were preserved in separate bottles and sealed. The appellant handed over the bribe amount to the companyplainant PW1 and the serial numbers were verified with the entrustment mahazar and they tallied. The prosecution has examined seven witnesses. Balachander PW2 is an independent witness and his testimony is fully companyroborated by the evidence of the companyplainant PW1. Prem Anand, Inspector, CBI, PW3 arranged the trap against the appellant in presence of the independent witnesses. Smt. Kasturi Bai PW6 was working as a Scientific Assistant Grade-I at the Forensic Science Department, Chennai. She stated in her report that she had received two solution bottles. On examination, the liquid companytained Phenolphthalein and Sodium Carbonate. The appellant in his statement under section 313 of the Code of Criminal Procedure for short, the Cr.P.C. stated that as a Site Engineer, his duties were to supervise the erection of girders at the work site of MRTS Project at Mylapore, to monitor the safety parameters of both men and materials at the site, to inspect whether the companytract works are being carried out according to the specifications and also management of stores under direct supervision of the Project Manager Deputy General Manager . The appellant in his defence stated that he had purchased a second hand two-wheeler TVS Champ No.TN-21- 6743 in 1997 from A. Alexander PW1 for a sum of Rs.7000/-. The appellant had already paid a sum of Rs.5000/- initially and the balance amount of Rs.2000/- was to be paid after he was satisfied with the vehicle. Since the vehicle had mechanical defects, therefore, the appellant had asked Alexander PW1 to take back the vehicle and return the money Rs.5000/- . The appellant further stated that at 1.00 p.m. on 1.4.1998, when he was working at the site at Mylapore, at that time, Alexander PW1 came to return the amount given by him towards the purchase two wheeler scooter and Alexander PW1 told him that his assistant Jayakanthan will handover the money to him. Thereafter, he along with the companyplainant went into the room of the Deputy General Manager Vaidyanathan to discuss about the bills and at that time Vaidyanathan had gone to the General Managers room to attend a STD call. He handed over the money by Jayakanthan. The appellant stated that at that time he immediately asked his kalasi Govindan and gave him the table key and asked him to take the vehicle key from the table drawer and handover the vehicle to Jayakanthan. At that time Vaidyanathan came back after attending the telephone call and all of them went back to his room and resumed the discussion. The appellant further stated that when Vaidyanathan asked him what that money was, he told him that it was given to him by Alexander PW1 through Jayakanthan as he was returning the two wheeler TVS Champ purchased from Alexander PW1 and that he had told Govindan to handover the vehicle to Jayakanthan. The appellant also stated that when the CBI people came and told him to raise his hands, he told Prem Anand PW3 that the money in his hand was for the vehicle transaction money and number the bribe money. The appellant further stated that he did number receive any bribe amount. He stated that it was number within his power to prepare the bills for the companyplainant PW1 as the matter was being dealt with at the Deputy General Manager level. The appellant also submitted that the companyplainant PW1 had deliberately filed this false companyplaint against him to forestall any action by the Indian Railway Construction Company IRCON as more than Rs.16 lakhs companyld be deducted from his bills. The Trial Court, after a detailed discussion, rejected the defence version of the appellant. The Trial Court held the appellant guilty of the offences under section 7 and 13 1 d read with section 13 2 of the Prevention of Corruption Act, 1998 for short, the Act and sentenced the appellant to undergo one year rigorous imprisonment for the charge under section 7 of the Act and fine of Rs.1000/- and in default to undergo further six months rigorous imprisonment. Two years sentence was given along with a fine of Rs.2000/- for the charge under section 13 1 d read with section 13 2 of the Act and in default of payment of fine, one year rigorous imprisonment was given. Both the sentences were ordered to run companycurrently and any period of imprisonment already undergone was ordered to be set off under section 428 of the Cr.P.C. On appeal, the High Court re-examined the matter and companyfirmed the findings of the trial companyrt, but reduced the sentence of two years into one year for the offence under section 13 1 d read with section 13 2 of the Act. The appellant aggrieved by the said judgment has preferred this appeal. We have heard learned companynsel for the parties. Mr. Altaf Ahmed, learned senior companynsel appearing for the appellant, submitted that in companyruption cases demand and acceptance are two most important aspects and both, the demand as well as the acceptance, must be proved by the prosecution. In absence of clear evidence of demand and acceptance, the companyviction in companyruption cases cannot be sustained. Reliance was placed on the case of Subash Parbat Sonvane v. State of Gujarat 2002 5 SCC 86. In this case there was numberstatement of any prosecution witness by which the demand of any amount from the companyplainant companyld be proved. In this case when the appellant asked the companyplainant to companye in the evening and while the accused was going towards the toilet, the companyplainant followed him and gave him something from his pocket which the appellant put in his pocket. The Court took the view that it companyld number be inferred that the appellant had demanded any amount from the companyplainant or that he had obtained the same. There is numberquarrel with the proposition of law that in companyruption cases, the prosecution must prove both the demand and acceptance of the bribe amount, but the facts of the present case are altogether different and the aforementioned judgment is of numberassistance to the appellant in the present case. In the instant case, the appellant had clearly demanded the amount from PW1. The relevant portion of the statement of the companyplainant reads as under He is the Proprietor of OLOHV Engineering Services and the above companypany was doing companytract work for the Railways. From the year 1993 to 1997, he has companypleted the companytract work for Rs.1 Crore. The Site Engineer will sign in the measurement book. The payment will be made by cheque. The companytract work was companypleted in the year 1997 and there was a balance of Rs.9 lacs due to P.W.1. During that period, the accused was the Site Engineer and he has to verify the measurement and entry to be made in the measurement book. The accused informed that P.W.1 has to return the unused materials to the Railway Department. On 1.4.98, at about 9.30 a.m. the accused demanded a bribe amount of Rs.5000/- to be paid to clear the final bill According to Balachander PW2, the money was handed over to the appellant in his presence. Immediately after the bribe amount was handed over to the appellant, he started companynting the currency numberes. At that time Balachander PW2 came out and gave the pre-arranged signal. Soon thereafter the Inspector and the trap team entered into the above room and the appellant was arrested. The Sodium Carbonate solution was prepared and Phenolphthalein test was companyducted on both the hands of the appellant separately. There was companyour change in the solution and they were preserved in separate bottles. Balachander PW2 is an independent witness and he has companyroborated the evidence of the companyplainant PW1. Therefore, in the facts and circumstances of this case, it is difficult to accept the submission of the appellant that there was numberdemand and acceptance of the bribe amount. Both the Trial Court and the High Court rejected the defence version of the appellant. This Court in State of U.P. v. Dr. G. K. Ghosh 1984 1 SCC 254 has aptly observed that by and large a citizen is somewhat reluctant, rather than anxious, to companyplain to the Vigilance Department to have a trap arranged even if illegal gratification is demanded by a Government official. The relevant para 9 at page 261 of the judgment reads as under By and large a citizen is somewhat reluctant, rather than anxious, to companyplain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait for a number of officers. He has to provide his own currency numberes for arranging a trap. He has to companyply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort whilst doing so. Thereafter, he has to attend the companyrt at the time of the trial from day to day. He has to withstand the searching cross-examination by the defence companynsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the companyrt, he has to face the humiliation of being companysidered as a person who tried to falsely implicate a Government servant, number to speak of facing the wrath of the Government servants of the department companycerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the companyrse of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of companyrse, it cannot be gainsaid that it does number mean that the companyrt should be oblivious of the need for caution and circumspection bearing in mind that one can companyceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a go-bye to the rules, the official refuses to yield. We have heard the learned companynsel for the parties at length and carefully perused the impugned judgment of the High Court as well as the judgment of the Principal Special Judge for the CBI Cases. |
V. Chandrachud, J. The appellant admitted before the learned Sessions Judge. Sholapur, that he assaulted Nagnath with the handle of a hunter which led to Nagnaths death. He, however, pleaded that Nagnath and the eye-witness Ramesh had rushed on him with an axe driving him to retaliate in self-defence. The learned Sessions Judge accepted the testimony of Ramesh, disbelieved the defence, companyvicted the appellant under Section 302, Penal Code, and sentenced him to suffer imprisonment for life. The High Court, Bombay, dismissed the appeal against that judgment summarily without recording any reasons. This appeal by special leave is directed against that order. This Court has held in mere than one case that though the. High Courts possess the power to dismiss criminal appeals summarily, appeals involving serious or substantial questions which are prima facie arguable should number be dismissed summarily , without recording brief reasons in support of the order of dismissal. See Shyam Deo Pandey v. State of Bihar and the cases referred to therein . Having companysidered the facts and circumstances of this case we do number think that it is possible to bring this case within that rule. The evidence of Ramesh P.W. 8 and Machhindra P.W. 9 establishes beyond the measure of a doubt that on the evening of April 2, 1969, the appellant beat Nagnath mercilessly with the handle of a hunter. There is number one circumstance which even charitably can be companystrued to companyfer the right of self-defence on the appellant Nagnath asked the appellant a rustic question inquiring whether the appellant had kept buffaloes for drink ing milk and this was enough excuse for the appellant to beat Nagnath to death. The true reason for the assault seems to be that a month or so before the incident Nagnath had attempted to outrage the modesty of the appellants wife, Hirakani. The interval between that incident and the assault on Nagnath is too long to afford to the appellant the benefit of the plea of grave and sudden provocation. The evidence of, Dr. Shiva-ppa Shankar Hingmire shows that Nagnath had as many as 12 injuries on his person and that injury No. |
Heard learned companynsel for the parties. This is an appeal arising out of judgment and order dated 26th June, 2000 passed by the High Court of Karnataka at Bangalore in L.R.R.P. No.2339/1990. An application was filed in the year 1977 by Hanumappa - the predecessor-in-interest of the companytesting respondents, before the Land Tribunal Ranebennur for companyferment of occupancy rights, which was disposed of in the following manner Applicant present in Court. Amongst the opponent, 1st opponent and the mother are present. Matter was enquired and the statements were recorded. The relevant records were perused. The Applicant was earlier cultivating the land on Koru lavani and thereafter i.e. 4 to 5 years back the said land was given to the landlords. companytd2/- The Opponent who were present have admitted the position. Village Reg.Sy.No. Area Revenue Mastur 69 9-21 20.68 Since the applicant has stated before the tribunal that he has given up the cultivation of the land the application of the Applicant is rejected. About seven years thereafter, a writ petition was filed by him before the High Court challenging this order of the Land Tribunal Ranebennur. The Appellate Authority allowed the appeal mainly on the ground that since the respondent was in possession, his name should be recorded. In revision, the High Court has affirmed the said finding. This appeal special leave petition was filed against the aforesaid order of the High Court in revision and has been heard by us in presence of the learned companynsel for the parties. In our view, the impugned order of the High Court cannot be sustained simply for two reasons. |
AHMADI, CJI ----------- Two questions are raised in this appeal, namely, i the Central Administrative Tribunal had numberjurisdiction to entertain the application and ii the Tribunal was wrong in holding that the pension admissible to the respondent as Vice-Chairman of the Tribunal had to be determined under Part I of the First Schedule to the High Court Judges Conditions of Service Act, 1954, hereinafter called the Act. The brief facts which we are required numberice run as follows The first respondent was appointed a Judge of the High Court of Calcutta on 13th January, 1978 and she retired as such with effect from 16th February, 1989. Soon thereafter on 3rd March, 1989 she was appointed a Vice-Chairman of the Tribunal which post she relinquished on 16th February, 1992 on retirement. Admittedly she was drawing pension on retirement as High Court Judge. For the period between 3rd March, 1989 and 16th February, 1992 she served as the Vice- Chairman and was entitled to pension. She companytended that her pension should be fixed under Part I whereas the Unions companytention was that she was entitled to pension admissible under Part III of the First Schedule to the Act. As her companytention was number companyceded she filed O.A. No. 513 of 1992 in the Central Administrative Tribunal for relief as per her point of view. The Union raised a preliminary objection regarding jurisdiction and on merit companytended that the departments point of view is unassailable. The Tribunal upheld both the companytentions of the respondent and hence this appeal by special leave. We do number propose to go into the question of jurisdiction as we deem it proper to settle the question of fixation of pension so that the first respondent is number driven from pillar to post. We will, therefore, address ourselves to the question of pension admissible to the first respondent. We may at the outset refer to Rule 15A of the Central Administrative Tribunal Salaries and Allowances and Conditions of Service of Chairman, Vice-Chairman and Members Rules, 1985. It reads as under 15-A. Notwithstanding anything companytained in rules 4 to 15 of the said rules, the companyditions of service and other perquisites available to the Chairman and Vice-Chairman of the Central Administrative Tribunal shall be the same as admissible to a serving Judge of a High Court as companytained in the High Court Judges Conditions of Service Act, 1954 and High Court Judges Travelling Allowances Rules, 1956. Thus the companyditions of service and other perquisites available to the Vice-Chairman shall be the same as admissible to a serving judge of a High Court. A serving judge of a High Court is entitled to pension under Chapter III of the Act. Section 14 says that every Judge, shall, on retirement be paid a pension in accordance with the scale and provisions in Part I of the First Schedule, provided he is number a member of the ICS or has number held any other pensionable post under the Union or State. Section 15 provides that every Judge who is number a member of the ICS but has held any other pensionable civil post under the Union or the State, shall, on retirement be paid a pension in accordance with the scale and provisions in Part III of the First Schedule. The provisions of Part I apply to a Judge who is number a member of the ICS or has number held any other pensionable post under the Union or a State and also apply to a Judge who, being the member of ICS or having held any other pensionable civil post under the Union or a State, has elected to receive the pension payable under the said Part. On the other hand the provisions of Part III apply to a Judge who has held any pensionable post under the Union or a State but is number a member of the ICS and who has number elected to receive the pension payable under Part I. The first respondent was a direct recruit from the Bar when she was appointed a Judge of the High Court and, therefore, on her retirement she became entitled to pension under Part I of the First Schedule. There is numberdoubt, so far as this aspect is companycerned. When she was appointed a Vice-Chairman of the Tribunal she was already drawing pension as a retired High Court Judge. Therefore, the short question is whether her case would be governed by Part I or Part III of the First Schedule when she retired as Vice-Chairman of the Tribunal. The submission on behalf of the Appellant-Union is that since the first respondent was holding a pensionable post under the Union State at the time when she retired as the Vice-Chairman of the Tribunal, her case would be governed by Part III and number Part I of the First Schedule. The first respondent was indisputably number a member of the ICS. Was she holding a pensionable post under the Union State at the time when she retired as the Vice-Chairman of the Tribunal? If she was holding a pensionable post under the Union State, there can be numberdoubt that she would number be entitled to pension under Part I but would be entitled to pension under Part III of the First Schedule. That gives rise to the question whether a High Court Judge who is drawing pension can be said to be a person holding a pensionable post under the Union State. If the answer is in the affirmative the first respondent would be entitled to pension under Part III, but if the answer is in the negative, she would be entitled to pension under Part I of the First Schedule to the Act. That is the moot question for companysideration under Rule 15A, extracted earlier. The pension has to be the same as admissible to a serving Judge of a High Court under the Act and the Rules made thereunder. Does a Judge of the High Court hold a post under the Union or a State? If yes, the first respondent having retired as a Judge of the High Court and having been drawing pension at all material times would number be entitled to fixation of pension under Part I of the First Schedule. If, however, it is found that a High Court Judge does number hold a post under the Union or a State, Part I would squarely be attracted as he or she would be outside thescope of Part III. Therefore, what we have to determine is whether the first respondent who was admittedly a pensioner as a retired High Court Judge companyld be said to be a person holding a pensionable post under the Union or a State. The question to be companysidered is whether under the Constitution there is, strictly speaking, a relationship of master and servant between the Government and a High Court Judge? In order to answer this question a few provisions of the Constitution need to be numbericed. Firstly, Article 50 enjoins that the State should take steps to separate the judiciary from the executive. Next, we may numberice Chapter V in Part VI of the Constitution which companycerns High Courts in the States. Article 214 provides that there shall be a High Court for each State or a group of States. Article 217 posits that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after companysultation with the Chief Justice of India, etc., who shall hold office until he attains the age of 62 years. A Judge once appointed can vacate office by tendering his resignation or on his elevation to the Supreme Court or transfer to another High Court or on being removed from office by the President in the manner provided by Article 124 4 , i.e. after an address by each House of Parliament supported by a majority of the total membership of that House and by majority of number less than two-thirds of the members present and voting has been presented to the President. The removal can be on the ground of proved misbehaviour or incapacity. Article 219 expects every person appointed to be a Judge of the High Court to make and subscribe an oath or affirmation according to the form set out in the Third Schedule. That form is Form VIII which inter alia requires the Judge to swear in the name of God or to solemnly affirm that he would truly and faithfully and to the best of his ability and judgment perform his duties without fear or favour, affection or illwill. These words clearly indicate that the judicial function must be discharged without being influenced by extraneous companysiderations. Independence and impartiality are the two basic attributes essential for a proper discharge of judicial functions. A Judge of a High Court is, therefore, required to discharge his duties companysistently with the companyscience of the Constitution and the laws and according to the dictates of his own companyscience and he is number expected to take orders from anyone. Since a substantial volume of litigation involves Government interest, he is required to decide matters involving Government interest day in and day out. He has to decide such cases independently and impartially without in any manner being influenced by the fact that the Government is a litigant before him. In order to preserve his independence his salary is specified in the Second Schedule, vide Article 221 of the Constitution. He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the other two wings of the State. A Judge of the High Court, therefore, occupies a unique position under the Constitution. He would number be able to discharge his duty without fear or favour, affection or illwill, unless he is totally independent of the executive, which he would number be if he is regarded as a Government servant. He is clearly a holder of a companystitutional office and is able to function independently and impartially because he is number a Government servant and does number take orders from anyone. That is why in Union of India Vs. Sakalchand Himatlal Sheth 1977 4 SCC 193 Chandrachud J., said in paragraph 32 at page 224 the rejection of Mr. Seervais argument should number be read as a negation of his argument that there is numbermaster and servant relationship between the Government and High Court Judges. Bhagwati J. in his separate judgment said the same thing in paragraph 49 when he observed a Judge of the High Court is number a Government servant, but he is the holder of a companystitutional office. From the scheme of the Constitution to which we have adverted briefly it is obvious that the Constitution-makers were evidently keen to ensure that the judiciary was independent of the executive. An independent, impartial and fearless judiciary is our companystitutional creed. The Constitution has tried to insulate the judiciary from outside influence both from the Executive and the Legislature. The provisions of Chapter VI in Part V of the Constitution dealing with companyrts below the State High Court also show that the companystitution-makers were equally keen to insulate even the subordinate judiciary. Articles 233 to 237 have, therefore, provided a wholly different mode of selection and appointment of Judicial Officers at the grass roots level and upto the District Courts from the one provided for other civil posts. No doubt the initial appointment has to be made by the Governor of the State, albeit after selection as provided in that chapter, but thereafter the posting and promotion, grant of leave, etc., is with the High Court and number the Government. Thus the Judicial Officers belonging to the subordinate companyrts are placed under the protective umbrella of the High Court. We have already pointed out the provisions dealing with the appointment of High Court Judges. The entire procedure outlined for their appointment is totally different from that provided for other services. That is because the companystitution-makers were companyscious that the numberion of judicial independence must number be diluted. If the relationship between the Government and the High Court Judge is of master and servant it would run companynter to the companystitutional creed of independence for the obvious reason that the servant would have to carry out the directives of the master. Since a High Court Judge has to decide cases brought by or against the Government day in and out, he would number be able to function without fear or favour if he has to carry out the instructions or directives of his master. The whole companycept of judicial independence and separation of judiciary from the executive would crumble to the ground if such a relationship is companyceded. High Court Judges would number be true to their oath if such a relationship is accepted. That is why number only Judges but even the staff members are insulated from executive influence. Article 229 clearly provides that appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer as he may direct. Even the companyditions of service of officers and servants shall be such as may be prescribed by the Chief Justice or his numberinee authorised by him to make rules the approval of the Governor is necessary only if the rules relate to salaries, allowances, leave or pension. This provision also shows that officers and servants of the High Court are also under the exclusive companytrol of the Chief Justice and number the Government. If that be the relationship between the officers and servants of the High Court vis-avis the Government, it is difficult to imagine a master and servant relationship between the Government and Judges of the High Court. We have, therefore, numberhesitation in companying to the companyclusion that the relationship between the Government and High Court Judges is number of master and servant. They cannot be said to be holding a post under the Union State. |
THOMAS, J. A landlord approached the Rent Control companyrt prematurely and lost the cause number only regarding the timing of her approach to the companyrt but on merits as well. The High Court found that the claim of the landlord for eviction of the tenant from the building lost its tenability on account of the factors which sprouted up pendente lite. The unsuccessful landlord has, therefore, reached this Court by special leave. The tenant has been residing in the building of the landlord for nearly half a century by number, a few more years from number may mark the golden jubilee year of the tenancy . When the building was originally leased in 1956, it was in the ownership of appellants father. He executed a gift deed in favour of his daughter the appellant on 2-8-1980, as per Ext.B-10. But the appellant, bereft of patience to wait for the expiry of the moratorium period of one year, hastened to file the petition for eviction of the tenant on 1- 7-1981 under Section 11 3 of the Kerala Buildings Lease and Rent Control Act, 1965, for short the Act. Appellant made an endeavour to circumvent the quarantine prescribed under the sub-section on the premise that the tenant had executed a fresh lease agreement in her favour on 18-8-1980 Ext.A.1 . Section 11 3 of the Act reads thus A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. The sub-section has four provisos of which the third alone is relevant for companysideration in this appeal and hence that is extracted below Provided further that numberlandlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. The Rent Control companyrt bypassed the ban companytained in the aforesaid proviso by accepting the companytention of the appellant that the right to recover possession of the leased premises is number based on Ext.B.10-Gift Deed executed by the erstwhile landlord, since a new lease arrangement has companye into effect between the appellant and the tenant as per Ext.A.1. Rent Control Court then proceeded to companysider the merits of the claim for eviction and upheld the bona fides of the need highlighted by the landlord. So the Rent Control Court granted the order for eviction. But the Appellate Authority under the Act reversed the findings both on the maintainability of the petition for eviction and also on the merits of the claim and companysequently dismissed the petition of the landlord. The order so passed by the Appellate Authority remained undisturbed in the revision filed by the landlord before the District Court which was then the revisional authority. However, a learned Single Judge of the High Court of Kerala, while disposing of a writ petition filed under Article 227 of the Constitution expressed inclination to approve the companytention that the petition filed by the landlord is number liable to be expelled solely on the strength of the ban companytained in the third proviso to Section 11 3 of the Act. The observations made by the learned Single Judge, on that score, are the following I find some merit in the companytention that after the tenant had, subsequent to the transfer inter vivos, attorned to the transferee-landlord, right to evict may arise out of that transaction itself and the transferee landlord then need number rely on the transfer in his favour. After expressing as above learned Single Judge has stated thus Since in view of my finding that the Appellate Authority and the revisional companyrt were right in negativing the claim for eviction under Section 11 3 of the Act on merits, I am number inclined to answer this question finally in this Original Petition. Even if the answer to this question were to be in favour of the landlord, she companyld number still succeed in view of my accepting the finding of the Appellate Authority and the revisional companyrt on the merits of her claim under Section 11 3 of the Act. In that situation I decline to interfere with the finding by the Appellate Authority and the revisional companyrt that the application is also number maintainable having been filed within one year of 2.8.1980. The case of the landlord that she needed the building bona fide for her own occupation was then companysidered by the High Court on merits and learned Single Judge entered upon a finding that it is number bona fide. The writ petition was, hence, dismissed. If the ban companytained in the third proviso to Section 11 3 of the Act applies, its companyollary is that the petition filed by the landlord has to be expelled on the sole ground that the landlord was then number entitled to file it. In such a situation the companyrt should number enter into the merits because whatever is said or found on the merits would then be without jurisdiction. High Court should have first decided the question of maintainability of the petition and only if that point was found in the affirmative the merits need have been gone into. Thus the question is whether appellants right to recover possession of the building arose under Ext.B.10 Gift Deed or under the new lease agreement Ext.A.1 dated 18.8.1980. No doubt appellant got the right to recover possession when she got the gift executed by her father. The companytention is that the said lease came to an end when the new lease agreement was executed. The aforesaid companytention is based on Section 111 f of the Transfer of Property Act on the premise that there was an implied surrender of the old lease when the new lease was executed. It must be pointed out that only two differences companyld be numbericed as between the lease agreement of 1956 and Ext.A.1. They are in the former the lessor was appellants father and the rent of the building was Rs.65 per month, while in the latter the lessor is appellant and the rent is Rs.150 per month. How companyld an implied surrender of the lease be inferred therefrom. It is admitted that the tenant companytinues to be in possession of the building in the same manner as before and the building also remains the same. The principle which governs the doctrine of implied surrender of a lease is that when certain relationship existed between two parties in respect of a subject matter and a new relationship has companye into existence regarding the same subject matter, the two sets cannot companyexist, being inconsistent and incompatible between each other, i.e. if the latter can companye into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alteration or improvement or even impairment of the former relationship would number ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis--vis the erstwhile demise and then judge whether there was termination of the old jural relationship by implication. The following passage in the Halsburys Laws of England, 4th Edn. Vol.27 at page 355, is apposite Surrender by change in nature of tenants occupation. A surrender is implied when the tenant remains in occupation of the premises in a capacity inconsistent with his being tenant, where, for instance, he becomes the landlords employee, or where the parties agree that the tenant is in future to occupy the premises rent free for life as a license. An agreement by the tenant to purchase the reversion does number of itself effect a surrender, as the purchase is companyditional on a good title being made by the landlord. In Hill and Redmans Law of Landlord and Tenant 16th Edn. at page 451 it is observed that a surrender does number follow from a mere agreement made during the tenancy for the reduction or increase of rent, or other variation of its terms, unless there is some special reasons to infer a new tenancy, where, for instance, the parties make change in the rent under the belief that the old tenancy is at an end. In N.M. Ponniah Nadar v. Smt. Kalakshmi Ammal, 1989 1 SCC 64 a three-Judge Bench of this Court found that an arrangement by which rent of the building was increased in respect of existing tenancy will number bring an end to the pre-existing lease. In Krishna Kumar Khema v. Grindlays Bank 1990 3 SCC 669 a two-Judge Bench of this Court held thus Surrender of a part does number amount to implied surrender of the entire tenancy and the rest of the tenancy remains untouched. Likewise the mere increase or reduction of rent also will number necessarily import a surrender of an existing lease and the creation of a new tenancy. Assuming that Ext.A.1 has created a new lease after terminating the erstwhile lease, the difficulty is that the grip of the ban companytained in the third proviso would still companytinue to foreclose the landlord from filing the petition for a period of one year from the new lease deed. This is because the landlords right to recover possession would then arise under that instrument of lease, which would also be a transfer inter vivos as envisaged in the third proviso. In Blacks Law Dictionary the expression inter vivos is given the following meaning Between the living from one living person to another. Where property passes by companyveyance, the transaction is said to be inter vivos, to distinguish it from a case of succession or devise. So the landlord had to wait for a still further period if he were to root his right in Ex.A1 to recover possession of the building. As the third proviso to Section 11 3 disentitles a landlord from applying for eviction of the tenant before the expiry of the quarantine period, the petition filed by the landlord in this case has to be dismissed only on that ground. Any observation made on the merits of the case in the proceeding based on such a number-maintainable petition must stand erased from judicial numberice. |
Others v. State of Andhra Pradesh and Others 1983 4 SCC 353 M s Amarnath Om Prakash and Others v. State of Punjab Ors. 1985 I SCC 345 referred to. CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1 3 14 Of 1971 From the Judgment Order dated 2. 7. 68 of the Kerala High Court at Ernakulam in Writ Petition NOS. 107 108/68. S. Nabiar and P. Parmeswaran, for the Appellant. N. Sudhakaran. P. K. Pallai, V. J. Francis, N. M. Popli A. C. Pudissary for the respondents. The Judgment of the Court was delivered by. DESAI, J. The respondents in these two appeals filed Original Petitions Nos. 2892-3073 of 1965 challenging the validity of the licence fee levied by the appellant The City Corporation of Calicut to be paid for use of the land or premises for soaking of companyonut husks. The appellant Corporation by its resolution dated January 25. 1963 levied licence fees in respect of various items set out in 1010 Schedule IV of the Calicut City Municipal Act, 190l subsequently restyled as Kerala Municipal Corporation Act, 1964 Corporation act for short including for use of premises and land for soaking companyonut husks. The respondents are admittedly carrying on the trade of soaking companyonut husks and they had number taken out a licence for carrying on the trade. The Commissioner of the appellant Corporation issued a numberice to each of the respondents calling upon him to show cause why within three days of the receipt of the numberice, the respondents should number be prosecuted for using premises for soaking companyonut husks without obtaining a licence as required by law. The respondents challenged the validity and legality of the afore-mentioned numberices issued by the Corporation and served upon them in the aforementioned two writ petitions on diverse grounds, inter-alia companytending that if the licence fee Is levied as a fee, numberservice is rendered or special advantage or favour is companyferred by the Corporation on the respondents for companylecting such fee and that there is numberquid pro quo and that the relevant provisions of the Act do number enable the Corporation to levy such a fee. Alternatively, it was companytended that if it is levied as a tax, it is beyond the taxing powers of the Corporation. The Corporation filed its companynter-affidavit and sought to justify the fee as a licence fee or in the alternative it was companytended that the Corporation had the power to levy a tax of the nature levied by it. Both the petitions came up before a learned Single Judge of the high Court who held that the levy of the impugned licence fee is number legal in the absence of companyferment of special benefit on the petitioners and other persons who soak companyonut husks. The alternative submission that the Corporation had the power to levy it as a tax was negatived observing that the power to levy the various taxes companyferred on the Corporation under Chapter V of the 1964 Act does number companyprehend the impugned levy and accordingly held that as a tax it was number valid and legal. Accordingly both the writ petitions were allowed and the impugned numberices were quashed. The Corporation after unsuccessful Writ Appeals Nos. 107-108 of l967 filed these Appeals by special leave. Mr. A. S. Nambiar, learned companynsel who appeared for the appellant-Corporation urged that the levy of licence fee as fee is fully justified and the High Court was In error in rejecting it as 1011 such on the ground that the respondents do number enjoy any special A service or benefit for paying the fees on the traditional view of law more or less than prevailing that for a fee there must necessarily be quid pro quo. He submitted that the trend revealed by recent decisions of this Court would show that traditional view about fee has undergone a sea change and that the demarcating line between tax and fee has become so blurred as to become almost invisible. It w-s alternatively submitted that even according to traditional view the Corporation has placed enough evidence on record to show that the respondents have been and are receiving special service or benefit in return for the fees levied and paid It is number necessary to examine the alternative submission save saying in passing that the respondents do enjoy certain benefits from the functions discharged by the Corporation. The first limb of the companytention must prevail in view. of the three resent decisions of this Court. in Municipal Corporation of Delhi Ors. v. Mohd Yasin Anr.1 after a review of the earlier decisions it was observed as under What do we learn from these precedents? We learn that there is numbergeneric difference between a tax and a fee, though broadly a tax is a companypulsory exaction as part of a companymon burden, without promise of any special advantages to classes of tax payers whereas a fee is a payment for services rendered, benefit provided or privilege companyferred. Compulsion is number the hallmark of the distinction between a tax and a fee. That the money companylected does number go into a separate fund but goes into the companysolidated fund does number also necessarily make a levy a tax. Though a fee must have relation to the services rendered, or the advantages companyferred, such relation need number be direct, a mere casual relation may be enough. Further, neither the incidence Or the fee number the service rendered need be uniform. that others besides those paying the fees are also benefited does number detract from the character of the fee. In fact, the special benefit or advantage to the payers of the fees may even be secondary as companypared with the primary motive of regulation in the public interest. Nor is the companyrt to assume the role of a companyt accountant. It is neither necessary number expedient to weigh too meticulously the companyt of the services rendered etc. against the amount of fees companylected so as to evenly balance the two. A broad company relationship is all 1 1983 3 S. C. 229. 1012 that is necessary quid pro quo in the strict sense is number the one and only true index of a fee number is it necessarily absent in a tax This view was reaffirmed in Sreenivasa General Traders and Others v. State of Andhra Pradesh and Others l observing that it is increasingly realized that the element of quid pro quo in the strict sense is number always a sine qua number for a fee. However, companyrelationship between the levy and the services rendered or expected is one of general character and number of mathematical exactitude. All that is necessary is that there should be a reasonable company relationship between the levy of the fee and the services rendered. In a very recent decision in M s Amarnath Om Prakash and Others v. State of Punjab Ors. 2 the Court reiterated the principle laid down in Mohd. Yasins case. It is thus well-settled by numerous recent decisions of this Court that the traditional companycept in a fee of quid pro quo is under going a transformation and that though the fee must have relation to the services rendered, or the advantages companyferred, such relation need number be direct, a mere casual relation may be enough. It is number necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for companylecting fee is satisfied It is number necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee. Applying the ratio of these decisions it is incontrovertible that the appellant-corporation is rendering numerous services to the persons within its areas of operation and that therefore the levy of the licence fee as fee is fully justified Soaking companyonut husks emit foul odour and companytaminates environment. The Corporation by rendering scavenging services, carrying on operations for cleanliness of city, to make habitation tolerable is rendering general service of which amongst others appellants are beneficiaries. Levy as a fee is thus justified. 1 1983 4 S.C.C. 353. 2 1985 I S.C.C. 345. |
Application seeking exemption from filing official translation is allowed. Leave granted. The appellant stands companyvicted for offences punishable under Section 8C read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for being in possession of 252 grams of charas. The trial companyrt on a companysideration of the evidence companyvicted and sentenced the appellant to undergo 10 years rigorous imprisonment and Rs. 1 lakh as fine and in default of payment of fine to undergo a CRL.A. No2325of 2009 SLP CRL. No. 7359 of 2009 further period of one years imprisonment. The High Court has companyfirmed the companyviction and sentence. |
Sema, J. By an order dated 15.6.1990, the Addl. Sessions Judge, Amritsar, companyvicted the accused Sucha Singh, Major Singh and Kashmir Singh alias Bitoo for an offence under Section 302/34 IPC and sentenced them to undergo RI for life and a fine of Rs.5000/- each and in default of payment of fine further RI for 2 years each. Being aggrieved, the accused preferred an appeal i.e. Criminal Appeal No. 220 DB of 1990. By the impugned judgment and order dated 11.5.1992, the High Court has reversed the companyviction and sentence passed by the Addl. Sessions Judge and recorded the acquittal of the accused. This appeal has been preferred by the State. Briefly stated, the prosecution case is that PW-4 Gurdial Singh lodged a companyplaint at S.G.T.B. Hospital, Amritsar on 8.10.1987 at 11.40 a.m. to the effect that he was a resident of village Lawan and was an agriculturist. He had two sons. The elder one was Sarabjit Singh deceased and the younger one was Gurwinderpal Singh. He further stated that his wife Amarjit Kaur was having pain in the abdomen and was suffering from dysentery. At about 7.00 a.m companyplainant Gurdial Singh was in his fields which is adjacent to the matalled road. PW-5 Shangara Singh was present in his fields, which is adjoining to the fields of Gurdial Singh. While PWs 4 and 5 were talking about the current situation prevailing in the State, his son Sarabjit Singh came there on his scooter No. PAA-660 and on being inquired from PW-4 as to where he was heading to, his son told that he was going to bring medicine for his mother from Chogawan. When he had hardly companyered a distance of about 20/21 karams, the accused Sucha Singh armed with kirpan, Major Singh armed with gandasi and Kashmir Singh alias Bitoo armed with datar emerged from the fields of basmati crops and encircled his son Sarabjit Singh. He further stated that accused Sucha Singh raised lalkara that the deceased be taught a lesson for the murder of Kuldip Singh, nephew of Sucha Singh, companymitted by him and others earlier. Sucha Singh gave two kirpan blows successively which hit on the head and forehead of Sarabjit Singh, resulting in the fall of Sarabjit Singh on the ground. Thereafter, the accused Bitoo gave two datar blows, which hit Sarabjit Singh on the head towards the side of right ear and right wrist. Accused Major Singh gave two gandasi blows successively which hit Sarabjit Singh on the right eye and forehead. Accused Sucha Singh gave further kirpan blow, which hit Sarabjit Singh on his wrist of left arm. Bitoo gave datar blow on the right ankle. On alarm being raised by Sarabjit Singh Mar Ditta, Mar Ditta, his father Gurdial Singh PW-4 and Shangara Singh PW-5 went running towards the place of occurrence and on seeing them all the accused fled away with their respective weapons. Sarabjit Singh was immediately taken to S.G.T.B hospital, Amritsar and was admitted for treatment at 9.20 am. He expired at 10.00 a.m. and the FIR was lodged at 11.00 a.m., as numbericed. The motive of the crime, as stated in the FIR, was that about two years prior to the occurrence, Kuldip Singh nephew of Sucha Singh had been murdered by the companyplainant party in which all the companyplainant party were acquitted by the High Court. Accused Sucha Singh was the prosecution witness in that case and deposed against the companyplainant party, and therefore, he and companyaccused nursed a grudge against the companyplainant party. The High Court, on re-appraisal of the evidence, recorded the acquittal of the accused mainly on two grounds 1 that the presence of PWs 4 and 5 at the place of occurrence is doubtful and 2 that the ocular testimony is belied by the medical evidence, with regard to the injuries sustained by the deceased. PRESENCE OF PW-4 AND PW-5 AT THE PLACE OF OCCURRENCE It is submitted by Mr. Sudhir Walia, learned companynsel for the appellant, that the presence of PWs 4 and 5 at the place of occurrence has been wrongly disbelieved by the High Court. According to him, the prosecution has established the presence of PWs 4 and 5 at the place of occurrence. More so, PW-4 being the father of the deceased is a natural witness and inspired evidence. Counsel on both the sides have taken us through the entire evidence. PW-4 Gurdial Singh, father of the deceased stated before the Trial Court that in the morning of fateful day he had gone to his fields known as Babianwala field. The said field touches the matalled road leading to the Attari Chugawan road. He also stated that when he went to his fields, PW-5 Shangara Singh was also present in his fields. The time when PW-4 went to his fields is stated to be at 6.45 a.m. He also stated that the distance between his land and that of PW-5 was about two killas. He further stated that at about 6.45 a.m. PW-5 came near him and they were discussing the current situation prevailing in the State. When they were engaged in the discussion as stated, his son Sarabjit Singh, came on a scooter from the side of his house located in the village Abadi. On being inquired as to where he was going to, the deceased stopped the scooter and told him that he was going to bring medicines for his mother from Chogawan as she was down with loose motions. He had hardly companyered 15/20 karams on his scooter, when the accused emerged from the Basmati fields. All the accused encircled him and the accused Sucha Singh raised a lalkara that they would teach him a lesson for murdering their man. Thereafter, Sucha Singh gave two kirpan blows on the head of Sarabjit Singh, who fell down from the scooter. Accused Bitoo gave two datar blows, one landing him on the right ear and the other on right wrist followed by accused Major Singh armed with gandasi who inflicted two blows, one on the right ear and the other on the forehead. Accused Sucha Singh gave another kirpan blow, which landed on the left arm of the wrist of Sarabjit Singh. Accused Bitoo gave another blow on the right ankle of the victim. Thereafter, the accused caused more injuries with their respective weapons. He further stated that he and PW5 raised hue and cry, whereupon the accused fled away with their respective weapons. Similarly, PW-5 claimed to be present at the place of occurrence and saw the occurrence. He stated that at the time of occurrence he was present in his fields where Basmati crop was sown. PW-4 also stated in his crossexamination that land of PW-5 joins his land. PW-5 Shangara Singh, however, stated in his cross-examination that he did number own any land in village Lawan. In his cross-examination he has stated- I do number own land in village Lawan. I did number state to the police that I owned some land in village Lawan which is adjoining the land of Gurdial Singh. Confronted with portion B to B of Ex.DA where it is so recorded. I in fact own land in village Lawan which was purchased by me. That land in village Lawan so purchased by me is one kms. away from the spot of occurrence. The shifting stand taken by PW-5 would clearly show that he is an unreliable witness and number creditworthy. No reliance can be placed on such testimony to establish the presence of PW-5 at the place of occurrence, which would form the basis for companyviction. Mr. Sudhir Walia, learned companynsel, has drawn our attention to the testimony of PW-9 Dhanjit Singh Patwari. He stated that he knew both PWs 4 and 5. One Amar Singh is the father of PW-5 Shangara Singh and he further stated that Jamabandi Ex.PH is recorded in the name of Amar Singh. He also stated that the land of Amar Singh is at a distance of 5/6 killas from the land of Gurdial Singh PW-4 . A perusal of the statements of PWs 4 and 5, companypled with the testimony of other witnesses and facts and circumstances of the case, shows that the presence of PWs 4 and 5 at the place of occurrence is inherently improbable for the following reasons- PW-5 has admitted in his crossexamination that he owned numberland in village Lawan. If that is so, he has numberreason to be there at the place of occurrence, that too, at 6.45 in the morning. PW-4 has stated that the distance between his land and the land of PW-5 is about two killas. Assuming this statement is accepted, in numbermal circumstances, numberone would travel from a distance of two killas, that too, at 6.45 a.m. to meet a friend without a purpose. The prosecution has number been able to establish the circumstances leading PW-4 going to the field of PW-5 at that time. From the evidence on record it appears that the deceased travelled on a scooter to Chogawan village for purchase of medicines for his mother all of a sudden. Even PW-4, father of the deceased did number know about the illness of his wife, which led him to inquire from his son as to where he was going. If the father of the deceased himself did number know the programme of the deceased going to Chogawan village in advance it is inherently improbable that the accused would know his programme, way-lay and attack him armed with kirpan, gandasi , datar etc. It is in the evidence of both PWs 4 and 5 that the accused emerged from the Basmati crop fields and attacked the deceased. The evidence on record shows that in the murder case of Kuldip Singh nephew of Sucha Singh where PW4 was also one of the accused, were acquitted by the High Court. If that companyld be the motive to nurse a grudge against the companyplainant party, the accused would number have spared PW-4. It is also humanly improbable that the deceased sustained as many as 24 injuries on his body and the father of the deceased would be a mere spectator without trying to rescue him or intervene. The evidence on record would also show that the house of the accused is 6/7 killas towards the west of the village Abadi and the place of occurrence was at a distance of half a kilometer on the eastern side of the village Abadi. In ordinary circumstances, it is difficult to accept that the accused would be loitering around the place of occurrence companyering a distance of 6/7 killas armed with kirpan, gandasi, datar etc. PW-5 did number accompany the injured to the hospital. No explanation by the prosecution as to why he companyld number accompany the injured to the hospital. The companyduct of PW-5 is quite unnatural. This would make the presence of PW5 at the place of occurrence all the more doubtful. In our view, these circumstances would make the alleged presence of PW4 and PW5 at the place of occurrence inherently improbable. DISCREPANCY BETWEEN MEDICAL EVIDENCE AND OCULAR TESTIMONY. At the risk of repetition we may recapitulate what has been stated by PW-4 in his FIR and statement recorded under Section 161 Cr.P.C. PW- 4 ascribed the part played by each of the accused in assaulting the deceased as under Accused Sucha Singh gave two kirpan blows one after the other which hit on the head and forehead of Sarabjit Singh. On receipt of the said injuries Sarabjit Singh fell down on the ground. While Sarabjit Singh was lying fallen on the ground, Bitoo accused gave two datar blows, which hit Sarabjit Singh on the head towards the side of right ear and right wrist. Accused Major Singh also gave two Gandasi blows one after the other, which hit Sarabjit Singh on the right eye and forehead. Accused Sucha Singh gave further kirpan blow, which hit Sarabjit Singh on his wrist of left arm. Bitoo gave datar blow on the right ankle. Similar is the statement of PW-5. Altogether 8 injuries were said to have been caused by the accused persons. Dr.Jagdish Gargi, Assistant Professor, PW-1 companyducted the autopsy and found as many as 24 external injuries- An incised wound 12 x 3 cm on the forehead extending from the inner angle of right eyebrow to the temporal bone on the left side. Underneath bone, membranes and brain matter was cut. Clotted blood was present at the site. An incised wound 12 x 4 cm on the forehead and right side of the face upto tragus extending to the left side of the forehead. Underlying bones, membranes and brain matter was cut. Clotted blood was present. An incised wound 8 x 2 cm on the right side of face extending from the right ear upto the outer angle of right eye was present. Underneath bone was cut and clotted blood was present. An incised wound 5 x 3 cm on the right ear in the middle cutting the pinna and underlying bone. Clotted blood was present. An incised wound 12 x 3 cm on the right side of the head 2 cm above the injury No. 4. Underlying bone was cut. Clotted blood was present. An incised wound 7 x 3 cm above the anterior hair line in the middle. Underlying bone was cut and clotted blood was present. An incised wound 4 x 2 cm on the left side of the head, 6 cm above the left ear. Underlying bone was cut alongwith membranes. Clotted blood was present. An incised wound 5 x 2 cm in the middle of the occipital region at the level of external occipital protuberance. Underlying bone was partially cut and clotted blood was present. An incised wound 5 x 2 cm on the back of right index finger vertically placed. Underlying bone was cut and clotted blood was present. An incised wound 2 x 1 cm on the back of right middle finger. Distal phalanx was cut and clotted blood was present. The injury was vertically placed. An incised wound 1.5 x 1 cm on the back of right ring finger vertically placed. Proximal phalanx was cut. Clotted blood was present. Distal phalanx was cut separately and clotted blood was present. An incised wound 2 x 0.5 cm on the back of right little finger in the proximal phalanx region. Underlying bone was cut. Injury was vertically placed and clotted blood was present. An incised wound 3 x 1.5 cm on the back of hand near its medical border. Clotted blood was present. Three incised wounds in an area of 5 x 4 cm, 1cm part were present on the dorsum of left hand. Underneath mate carpals were cut. Injuries were vertically placed and clotted blood was present. An incised wound 2 x 1 cm on the dorsum of left little finger at its base. Underneath bone was cut. Injury was vertically placed and clotted blood was present. An incised wound 4 x cm on the dorsum of left ring finger vertically placed. Underneath bone was cut and clotted blood was present. Injury involved the proximal phalanx. An incised wound 1.5 x 1 cm at the tip of left middle finger. The injury was horizontally placed and the distal phalanx was missing. Clotted blood was present at the site. An incised wound 1.5 x 1 cm at the tip of left index finger. The injury was horizontally placed and distal phalanx was missing. Clotted blood was present. An incised wound 0 x 0.5 cm cutting the nail of the left thumb. Clotted blood was present. A reddish brown abrasion 3 x 1 cm on the front of right knee joint. A reddish brown abrasion 5 x 3 cm on the front of left leg in its middle. Two reddish brown abrasions in an area of 4 x 3 cm on the back of right forearm. Reddish brown abrasion 2 x 1 cm on the medical aspect of right arm, 5cm above the elbow joint. A reddish abrasion with denuding of superficial skin on the left flank of the abdomen extending to the buttock region laterally in an area of 25 x 15 cm. Right and left lungs were pale and so were liver, spleen and kidneys. PW-4 in his testimony before the Court stated that the accused also caused more injuries with their respective weapons on Sarabjit Singh. This witness was companyfronted with his statement recorded under Section 161 Cr.P.C. where he has number stated. Apart from discrepancy between ocular and medial evidence with regard to the injuries sustained by the deceased Sarabjit Singh on his body, the fact that the deceased suffered as many as 24 bodily injuries makes all the more doubtful the presence of PWs 4 and 5 at the place of occurrence. Inflicting 24 injuries on the body of deceased by the three accused persons would require a companysiderable amount of time. This itself suggest that the accused had sufficient time at their disposal to companymit the crime. Any father, worth the name, would number remain a mute spectator when his son is being inflicted as many as 24 injuries at his very numbere. Mr. Walia, learned companynsel, lastly companytended that there is a strong motive companynecting the accused with the crime for the reasons being that Kuldip Singh, nephew of accused Sucha Singh was murdered by the companyplainant party and the accused had nursed a grudge against the companyplainant party for revenge. This plea is of numberhelp to the prosecution case. When the basic foundation of the prosecution case crumbled down, the motive becomes inconsequential. At the same time, animosity is a double-edged sword. It companyld be a ground for false implication, it companyld also be a ground for assault. |
1995 2 SCR 351 The Judgment was delivered by SUJATA V. MANOHAR, J. SUJATA V. MANOHAR, J. - Leave granted in CAs Nos. 3039-40 of 1995 SLPs Civil Nos. 14935-14936 of 1994 Substitution allowed in Civil Appeals Nos. 3774-3775 of 1992 All these appeals raise a companymon question of law relating to the interpretation of the Tamil Nadu Land Reforms Fixation of Ceiling on Land Act, 1961 hereinafter referred to as the Principal Act read with Tamil Nadu Act No. 17 of 1970 which is the Tamil Nadu Land Reforms Reduction of Ceiling on Land Act, 1970. The latter Act is hereinafter referred to as the Reduction Act. As the facts are different in each group of appeals, they are dealt with separately Civil Appeal Nos. 3774-3775 of 1992 The deceased, V. Gopal Reddiar, the first appellant and his wife, the second appellant in these appeals, held agricultural lands in excess of the ceiling limit on 6-4-1960, which is the date of companymencement of the Tamil Nadu Land Reforms Fixation of Ceiling on Land Act, 1961. Under Section 5 of the Principal Act, a ceiling of 30 standard acres is fixed on land holding in the case of a family. An additional 10 standard acres is the ceiling on land holding of Stridhana land Under Section 7 of the Principal Act, on and from the date of companymencement of the Act i.e. on and from 6-4-1960 numberperson shall except as otherwise provided in this Act, but subject to the provisions of Chapter VIII hold land in excess of the ceiling area. Under Section 8, within 90 days of the numberified date, every person holding or deemed to be holding land in excess of the ceiling area is required to furnish to the Authorised Officer a return in respect of his land as specified in that section. The numberified date under the Principal Act is 2-10-1962. Under Section 10 1 the Authorised officer is required to prepare a draft statement in respect of a persons holding in excess of the ceiling area in the manner and on the basis specified therein. This draft statement is required to be published. A final statement has thereafter to be prepared and published as set out in Sections 12 to 14 Under Section 23 of the Principle Act, if a person holds land in excess of the ceiling limit, any sale of land, effected by him after the numberified date but before the publication of the final statement, cannot be taken into account in companysidering his holding for the purposes of fixing the ceiling. In the present case, the appellants effected sale transactions in respect of certain lands held by them between 3-7-1963 and 17-7-1964 i.e. after the numberified date under the Principal Act. There are five such transactions of sale during this period On 28-7-1965, a draft statement was published in respect of the appellants lands under Section 10 1 of the Principal Act. The appellants objected to the draft statement on 18-11-1965. While the proceedings were pending under the Principal Act, the Tamil Nadu Land Reforms Reduction of Ceiling on Land Act, 1970 came into force. The date of companymencement of the Reduction Act is 15-2-1970. Under the Reduction Act, the ceiling on land in the case of a family was reduced to 15 standard acres and the ceiling on Stridhana land was reduced to 5 standard acres. The numberified date under the Reduction Act was 2-10-1970 It was the companytention of the appellants that the transactions of sale effected between 3-7-1963 and 17-7-1964 were prior to the companymencement of the Reduction Act, and should be excluded from their holding for the purpose of determining the number reduced ceiling limit under the pending proceedings. This submission was rejected. An order was passed on 20-11-1971 asking the appellants to surrender 30.30 standard acres from out of their holding as surplus. Being aggrieved by the said order the appellants filed an appeal before the Land Tribunal. The Land Tribunal companyfirmed the order of the Authorised Officer and dismissed the appeal In revision, the High Court by its order dated 16-7-1976 directed a fresh enquiry to be held by the Authorised Officer. The High Court said that under the Reduction Act the numberified date was 2-10-1970. It directed the Authorised Officer to companysider whether the sale transactions of the appellants before this numberified date were bona fide transactions or number The Authorised Officer, by his order dated 25-9-1980, held that the transactions of sale after 6-4-1960 will have to be ignored for the purpose of the pending proceedings i.e. the lands forming the subject-matter of these sales shall be companysidered as a part of the appellants holding. He determined the surplus land accordingly. The Land Tribunal in appeal upheld the order of the Authorised Officer. The revision petition of the appellants has been dismissed by the High Court by its order dated 22-11-1989. Hence the present appeals have been filed Now, in order to appreciate the companytentions of both sides, it is necessary to look at Chapter III of the Principal Act. Chapter III of the Principal Act is entitled Ceiling on Future Acquisition and Restriction on Certain Transfers. Sections 19 to 23 companystitute this Chapter. Under Section 19 1 , on and after the numberified date 2-10-1962 , numberdocument relating inter alia to any transfer of land by sale shall be registered unless a declaration is made by the transferee before the registering authority of the total extent of land held by him, as set out therein Section 20 1 provides that if, as a result of any transfer of land inter alia by sale, on or after the numberified date, the land held by the transferee exceeds the ceiling area, then the right, title or interest accrued in his favour by virtue of such transfer in excess of the ceiling area, shall be deemed to have been transferred to the Government. Both these sections prescribe restrictions qua a transferee after the numberified date Under Section 22, where on or after the date of companymencement but before the numberified date i.e. from 6-4-1960 to 2-10-1962 any person has transferred any land held by him inter alia by sale, the Authorised Officer may, after numberice, on enquiry, declare the transfer to be void if he finds that the transfer defeats any of the provisions of this Act Section 23 which is relevant for our purpose provides as follows Subject to the provisions of Section 20, for the purpose of fixing, for the first time the ceiling area of any person holding land on the date of the companymencement of this Act, in excess of 30 standard acres, the Authorised Officer shall number take into companysideration - a any transfer by sale b effected on or after the numberified date and before the date of the publication of the final statement under Section 12 or 14. Thus, Section 22 and 23 place restrictions on transfer of land qua a transferor. Any transfer made by a transferor between 6-4-1960 and 2-10-1962 is liable to be declared void if it defeats the Principal Act. Any transfer made after 2-10-1962 and before the final statement cannot be taken into account for determining the land holding of the transferor, if he holds land in excess of the ceiling area. The transactions of sale in the present case are number affected by Section 22. Under Section 23, however, for the purpose of determining the ceiling area of 30 standard acres under the Principal Act, any sale transaction after the numberified date of 2-10-1962 but before the publication of the final statement has to be ignored. Therefore, the transactions of sale in the present case, which have taken place after the numberified date but before the final statement, have to be ignored for the purpose of determining the appellants ceiling limit under the Principal Act However, in the present case, the Reduction Act had companye into force before the publication of the final statement. As a result of the Reduction Act, the Principal Act was modified as set out in the said Reduction Act. As a result the date of the companymencement of this Act as defined in Section 3 11 of the Principal Act was changed to 15-2-1970 instead of 6-4-1960. By reason of amendment of Section 3 31 , the numberified date became 2-10-1970. In Section 5 of the Principal Act, the ceiling area of 30 standard acres was changed to 15 standard acres and the Stridhana holding was changed from 10 standard acres to 5 standard acres. We are number companycerned with the other changes in Section 5 Section 23 of the Principal Act was amended by insertion of the words after the date of the companymencement of this Act, after the words for the first time and 30 standard acres was substituted by 15 standard acres The amended Section 23 reads thus Subject to the provisions of Section 29, for the purpose of fixing, for the first time, after the companymencement of this Act, the ceiling area of any person holding land on the date of the companymencement of this Act, in excess of 15 standard acres, the Authorised Officer shall number take into companysideration - a any transfer by sale b effected on or after the numberified date and before the date of the publication of the final statement under Section 12 or 14. It is companytended by the appellants that since the numberified date number is 2-10-1970, transactions of sale between 2-10-1970 and the date of the publication of the final statement alone have to be ignored for the purpose of determining the ceiling of 15 standard acres under the amended Principal Act. Hence the transactions of sale in the present case, which have taken place prior to 2-10-1970, cannot be ignored and will have to be taken into account to determine the holding of the appellants on the date of the companymencement of the Reduction Act This submission ignores Section 3 of the Reduction Act which is in the nature of a saving section. It provides as follows 3. 1 Subject to the provisions of sub-section 2 any action taken including any order made, numberification issued, decision or direction given, proceeding taken, liability or penalty incurred and punishment awarded under the provisions of the Principal Act before the date of the publication of this Act in the Fort St. George Gazette, may be companytinued or enforced after the said date in accordance with the provisions of the Principal Act as if this Act had number been passed Nothing in sub-section 1 shall be deemed to entitle any person whether or number such person is a party to any proceeding mentioned in sub-section 1 , to hold after the 15th day of February, 1970, land in excess of the ceiling area under the Principal Act as modified by Section 2 and the provisions of the Principal Act as modified by Section 2 shall, after the said date, apply to such person. Section 3 1 provides that any proceedings which has been taken under the provisions of the Principal Act before the publication of the Reduction Act, may be companytinued in accordance with the provisions of the Principal Act as if the Reduction Act had number been passed. The proceeding for the determination of ceiling under the Principal Act had companymenced in the present case in 1965. It had, however, number been companycluded when the Reduction Act came into force. Under Section 3 1 , therefore, this proceeding has to be companytinued as if the Reduction Act had number been passed. Taken by itself, therefore, under Section 3 1 the ceiling area of 30 standard acres would have to be determined under the Principal Act as it originally stood. If so, the sale transactions in question will number be companysidered for determining the ceiling area prescribed under the unamended Principal Act, they having taken place after 2-10-1962 and before the publication of the final statement Sub-section 2 of Section 3 of the Reduction Act, however, provides that numberwithstanding anything companytained in sub-section 1 , numberperson shall be deemed to be entitled to hold after 15-2-1970, land in excess of the ceiling area under the Principal Act as modified by the Reduction Act. It further provides that the provisions of the Principal Act as modified by Section 2 of the Reduction Act shall, after 15-2-1970, apply to such person. Therefore, it is clear that despite Section 3 1 the appellants cannot hold land in excess of the reduced ceiling area after 15-2-1970. Their holding, determined under Section 3 1 , would have to be reduced further. How should this be done ? It is submitted before us by the respondents that as a result of Section 3 2 of the Reduction Act, pending proceedings under the old Act have to be companytinued save and except that the ceiling would be reduced. Hence transactions of sale after 2-10-1962 which were required to be ignored under the unamended Section 23 of the Principal Act would also have to be ignored under the Principal Act as modified by the Reduction Act in view of Section 3 1 This submission ignores an important part of Section 3 2 which prescribes that for the purpose of determining a persons reduced ceiling after 15-2-1970, the provisions of the Principal Act as modified by Section 2 of the Reduction Act, shall apply to a person against whom any proceedings are pending as described under Section 3 1 . This means that under Section 3 2 , for the purpose of determining the reduced holding, the amended Section 23 will have to be applied i.e. the numberified date under the amended Section 23 has number to be read as 2-10-1970 instead of 2-10-1962. For the purpose, therefore, of reducing the holding further under Section 3 2 , only sale transactions between 2-10-1970 and the date of the final statement are required to be ignored. Sub-sections 1 and 2 of Section 3 must be read harmoniously. In a case where a proceeding under the Principal Act had companymenced under the Principal Act but had number companycluded before the companymencement of the Reduction Act, the proceeding will have to be companytinued under the unamended Principal Act to arrive at the permissible holding under the unamended Principal Act. A person, however, cannot hold more than the reduced ceiling area after the companymencement of the Reduction Act. The proceeding, therefore, will have to companytinue in order to further determine the reduced holding under the modified principal Act. For the purpose of determining his final holding under the modified principal Act, the amended Section 23 will have to be applied to the ceiling holding determined under the original Principal Act. In the present case, therefore, for the purpose of calculating the reduced ceiling area, sale transactions between the new numberified date and the date of the final statement alone should be ignored vide amended Section 23 . Sale transactions prior to 15-2-1970 will have to be taken into account. Therefore, for further reduction under Section 3 2 what will have to be taken into account, will be the holding of the appellants as determined under the Principal Act Section 3 1 less any other reduction in their holding on account of sales, transfers etc. prior to the companymencement of the Reduction Act. The existence of the words and the provisions of the Principal Act as modified by Section 2 shall after the said date apply to such person in Section 3 2 clearly indicate that the further reduction of holding as per the Reduction Act has to be done in accordance with the provisions of the Principal Act read with the Reduction Act. Sub-section 2 cannot be read as simply reducing the ceiling area in the pending proceedings under the Principal Act. Sub-section 2 clearly provides the method of thus reducing the ceiling after 15-2-1970. This further reduction has to be done in accordance with the provisions of the Principal Act read with the Reduction Act Any pending proceeding, therefore, under the Principal Act will have to be companytinued and companycluded in the aforesaid manner by first calculating the ceiling area under the Principal Act and then reducing it further to the ceiling under the Reduction Act read with the Principal Act by applying the provisions of the Principal Act as modified by the Reduction Act so that a person does number hold land in excess of the ceiling area prescribed under the Principal Act read with he Reduction Act. The holding of the appellants, therefore, is required to be redetermined in accordance with the principles laid down by us hereinabove The appeals are accordingly partly allowed. The proceedings are remanded to the Land Tribunal for determination of the ceiling area of the appellants in the manner described hereinabove. There will, however, be numberorder as to companyts Civil Appeals Nos. 4960-4965 of 1994 These proceedings pertain to certain properties held by one Papayee Ammal. Papayee Ammal enjoyed lands which she had inherited as the heir of her husband and also as the successor-in-interest of her sister Saradambal. There were disputes between Papayee Ammal and one Victor Jagannathan, the son of her husbands sister, and his children in respect of these lands. As a result, a family arrangement was arrived at on 17-9-1959. Under the family arrangement, certain specified properties were given to Papayee Ammal for life and the remaining properties were given to Victor Jagannathan and his children. After the death of Papayee Ammal, the properties in which she had a life interest, were to vest in the children of Victor Jagannathan absolutely. Papayee Ammal, however, had a right to alienate her properties in respect of which she had a life interest After this family arrangement was arrived at, Papayee Ammal, between 1960 and 1962 alienated certain properties in respect of which she had a life interest. As a result, in 1964 suits were filed against her by Victor Jagannathan and his children challenging the alienations made by Papayee Ammal. These alienations, however, have been ultimately upheld by the High Court Papayee Ammal died on 23-6-1965. Victor Jagannathan also died on 5-7-1965. In 1966, a draft statement under the Principal Act was published in respect of the land holding of Papayee Ammal since on the date of the companymencement of the Principal Act, Papayee Ammal was alive and held lands as a limited owner. Proceedings were taken under the Principal Act after bringing the heirs of Papayee Ammal on record. Certain lands in Vellappakam Village so held by Papayee Ammal and belonging to her estate were declared as surplus Between 1-1-1979 and 27-1-1979 the appellants purchased some of the lands in Vellappakam Village which have been declared as surplus, from the children of Victor Jagannathan. The final statement, however, in respect of the holding of Papayee Ammal was published on 27-7-1983. The appellants and others filed revision petitions under Section 82 before the Land Commissioner. The Land Commissioner by his order dated 25-9-1984 held that there was numberirregularity in the determination of the holding of Papayee Ammal and that the lands involved in the earlier sales made by Papayee Ammal should be allowed to be retained within the ceiling limit of 30 standard acres as on 6-4-1960 and the lands involved in the subsequent sale should be declared as surplus The appellants filed writ petitions challenging the order of the Land Commissioner. These petitions were transferred to the Tamil Nadu Land Reforms Special Appellant Tribunal. The Tribunal by its order dated 17-9-1992 has held that lands held by Papayee Ammal would attract the provisions of the Principal Act. It has further held that there is numberhing wrong in the proceedings companymencing after the death of Papayee Ammal. The Tribunal has rejected the companytention of the appellants that since numberproceedings were companymenced during the lifetime of Papayee Ammal, lands had become vested in the remaindermen and, therefore, the proceedings were without jurisdiction. The Tribunal also held that the provisions of the Principal Act alone will apply, numberwithstanding the companying into force of the Reduction Act. In this companynection the Tribunal has relied upon the provisions of Section 3 1 of the Reduction Act referred to above In the present appeals it is this finding of the Tribunal which is under challenge It is companytended by the appellants that on account of the death of Papayee Ammal in 1965 the properties vested in the remaindermen before the companymencement of the Reduction Act. Hence the lands in question cannot be companysidered as holding of Papayee Ammal on the date of the companymencement of the Reduction Act. The proceedings, therefore, under the Principal Act are bad in law and the properties in question have been validly alienated in their favour by the heirs of Papayee Ammal This companytention has been rightly rejected by the Tribunal under Section Papayee Ammal was alive on the date of the companymencement of the Principal Act and, therefore, her holdings was required to be determined under the Principal Act. The proceedings against the estate of Papayee Ammal were, therefore, rightly companymenced under the Principal Act after bringing her heirs on record. During the pendency of these proceedings, the Reduction Act came into force. By reason of Section 3 1 of the Reduction Act, these proceedings for the purpose of determining the ceiling under the Principal Act were required to be companytinued under the Principal Act. However, in these proceedings, the reduced ceiling was required to be determined under the provisions of the Principal Act read with the Reduction Act. The pending proceedings, therefore, must proceed to a companyclusion in the light of both sub-sections 1 and 2 of Section 3. There is only one proceeding under both these sub-sections. In that proceeding, the permissible holding must be first determined as per the Principal Act. This holding must, thereafter, be further reduced as provided in Section 3 2 by applying the Principal Act as modified by the Reduction Act. Hence there is only one proceeding - the one which is companymenced under the Principal Act. If it has number companycluded before 15-2-1970, it is required to be companytinued and companypleted in the above manner. Since the proceeding is one and companytinuous, the death of Papayee Ammal during the pendency of this proceeding does number result in the termination of this proceeding. Section 3 2 merely prescribes a reduced ceiling and the method of its calculation. It does number companytemplate companymencement of a fresh proceeding when the proceeding under the Principal Act has number companye to a companyclusion The sale transactions is question which took place in January 1979 will clearly have to be taken into account for the purpose of determining the reduced holding of the estate of Papayee Ammal. Since these sale transactions have taken place after the new numberified date as per the Reduction Act and before the final statement, these cannot be excluded from the holding of Papayee Ammal The ratio of the judgment of this Court in B. K. V. Radhamani Ammal v. Authorised Officer, Land Reforms, Coimbatore 1985 2 SCC 46 does number apply to the present case. In that case the proceedings under the Principal Act had companye to an end. After the companying into force of the Reduction Act, fresh proceedings were companymenced under the Principal Act as amended by the Reduction Act. In the present case, fresh proceedings are number taken after 15-2-1970. The proceeding under the Principal Act had number been companycluded before the companymencement of the Reduction Act. It was, therefore, companytinued under the Principal Act under Section 3 1 read with Section 3 2 . It does number abate on account of the death of Papayee Ammal during its pendency as the heirs and legal representatives of Papayee Ammal are on record The appeals are accordingly dismissed. There will, however, be numberorder as to companyts Civil Appeals Nos. 3039-40 of 1995 Arising out of SLPs C Nos. 14935-36 of 1994 In the present case, one Chellamani Ammal, the mother of the appellant, had filed a return under Section 8 1 of the Principal Act in respect of lands held by her. She had filed another return on behalf of the appellant, who is her adopted son, and who was then a minor. As per Section 3 14 of the said Principal Act their holdings were clubbed as one unit. There were several proceedings adopted in companynection with clubbing of the two holdings by Chellamani Ammal and the appellant with which we are number companycerned. During the pendency of these proceedings, the Reduction Act came into force On 30-9-1970 the appellant made a Deed of Declaration of Trust settling 14.93 acres in favour of E.R. Hindu Elementary School, Trichy. On the same date Chellamani Ammal also executed Deed of Declaration of Trust settling 31.41 acres of her land in favour of E. R. Hindu Elementary School, Trichy. Both of them claimed that the land which was the subject-matter of the two trusts should be excluded from their holdings under Section 21-A of the Reduction Act In this companynection, Writ Petitions Nos. 652 and 653 of 1977 were filed by the appellant and this mother before the High Court of Madras. The High Court by its order dated 7-1-1980 set aside the orders of the Land Tribunal and remanded both the matters to the Tribunal for fresh companysideration relating to the applicability of Section 21-A of the Principal Act read with the Reduction Act, to the holdings in question. The Tribunal in turn remitted the proceedings to the Authorised Officer for fresh disposal n the light of the observations made by the High Court The Authorised Officer held that since the proceedings had been initiated only under the Principal Act, they had to be companytinued according to the provisions of the Principal Act in view of Section 3 1 of the Reduction Act. He held that Section 21-A which was incorporated in the Principal Act by the Reduction Act, would number apply to these proceedings. These findings were upheld by the Land Tribunal as also by the Tamil Nadu Land Reforms Special Appellate Tribunal. Hence, the present appeals by special leave have been filed before us Section 21-A has been inserted in the Principal Act by the Reduction Act. The relevant provisions of Section 21-A are as follows 21-A. - Notwithstanding anything companytained in Section 22 or in any other provision of this Act and in any other law for the time being in force, where, after the date of the companymencement of this Act, but before the numberified date - a b c any person has voluntarily transferred any land - to any educational institution or hospital of a public nature solely for the purposes of such institution or hospital, such transfer shall be valid This section overrides all other provisions of the Act including Section It will, therefore, override Section 3 1 of the Reduction Act also. Hence, as a result of Section 21-A, if between 5-2-1970 and 2-10-1970 any land is transferred voluntarily, inter alia, to any educational institution, such a transfer shall be valid. The land so transferred is, therefore, excluded from the holding of any person even though the proceedings against him may have companymenced under the old i.e. the Principal Act. If the proceedings had number companycluded before the Reduction Act came into force, the person can claim the benefit of Section 21-A In the case of Susila Devi Ammal v. State of Madras 1993 S1 SCC 462 the provisions of Section 21-A were companystrued by this Court. In that case, proceedings under the Principal Act were pending. The High Court had, in revision, held that there was a material irregularity in the order in companyputing the holding which needed to be companyrected. These proceedings were pending when Section 21-A was enacted by the Reduction Act. This Court, while interpreting Section 21-A, stated SCC pp. 463-64, para 2 However, the said provision gave, what we may call, a transfer holiday, for a small period from 15-2-1970 to 2-10-1970 providing that numberwithstanding anything companytained in Section 22 or in any other provision of this Act, and in any other law for the time being in force, where any person has effected by means of a registered instrument a partition of his holding or part thereof such partition shall be valid. Now here the family which is a person under Section 3 47 of the Act by means of a registered partition deed effected a partition on 29-4-1970 within those crucial dates. It is significant to numberice that this provision with its number-obstante clause has asserted supremacy over all other provisions of the Act. This Court held that Section 21-A would override the provisions of Section This ratio is directly applicable to the present case. Section 21-A will, therefore, apply to pending proceedings under the Principal Act, numberwithstanding the provisions of Section 3 1 of the Reduction Act In this companynection, a reference has also been made to the case of M. K. Harihara Iyer v. Authorised Officer, Land Reforms, Tirunelveli 1990 Supp SCC 182 1990 1 SCR 358 . In that case appellant-landowner had land in excess of 30 standard acres as on 6-4-1960. He filed a return as required by the Principal Act and an enquiry was initiated by the Authorised Officer. Under the said Act several objections raised by the appellant were rejected and the Authorised Officer determined the surplus holding of the appellant. There were various proceedings in companynection with this finding of the enquiry officer which ultimately went in revision before the High Court. One of the pleas raised before the High Court was in companynection with certain documents executed by the appellant between 15-2-1970 and 2-10-1970. Section 21-A came to be incorporated in the Principal Act by reason of the Reduction Act. The High Court held that provisions of Section 21-A would have to be applied for determining the ceiling area. It further held that if the documents executed were found to be in order to defeat the provisions of the Act, the transactions may be declared void under Section 22 of the Act. This finding of the High Court was challenged before this Court. This Court companysidered the provisions of Section 21-A and Section 22 of the Principal Act as amended by the Reduction Act, and held that Section 21-A, which begins with the words - numberwithstanding anything companytained in Section 22- clearly overrides Section 22. |
We thought that with the two orders passed by this Court one dated 7.4.1997 and the other 30.3.1998 there would be numbermore companytroversy between the prospective allottees who are the petitioners in all these interlocutory applications and the Land Developer who is also styled as companyonizer or owner etc. . When the prospective allottees were on the threshold of realising their dream of getting possession of the plots applied for by them, they are companyfronted with a new situation as they got a letter addressed by the Land Developer dated 15.4.1998 requiring each of them to pay a total amount of Rs. 2,550/- per square yard for the plots included in phase I or Rs. 2,390/- per square yard for the plots included in phase II . The said letter directed them to pay the amount after crediting the amount already remitted. On the receipt of the said letter the petitioners have approached this Court once again with the grievance that the said demand is in violation of the orders passed by this Court dated 7.4.97 and 30.3.98. It is true that this Court has resolved the companytroversy between the parties relating the the companyt of land by order dated 7.4.97. it is also true that this Court resolved the dispute between the parties regarding the External Development charges and or the Internal Development charges as for the plots in Phase I and Phase II vide order dated 30.3.98 . |
2003 Supp 3 SCR 881 The Judgment of the Court was delivered by SHIVARAJ V. PATIL, J. The appellants were companytractors in respect of toddy shops during the given period. Toddy shops were run on the basis of yearly auction companyducted by the Excise Department of the Government of Kerala. Various guidelines were issued by the Board of Revenue and the State Government from time to time for running toddy shops. The employees working in the toddy shops during the period in question were number brought under the companyerage of the ESI Scheme mainly on the ground that the provisions of ESI Scheme were number applicable to the toddy shops according to the appellants assuming that the Employees State Insurance Act, 1948 for short the Act was applicable to the toddy shops in the previous years, that did number create any companytinuing liability of the appellants. On the basis of the inspection companyducted by the officers of the respondent Corporation, respondents took up the position that the toddy shops were companyered under the Act and assessed to the companytribution recovery proceedings also were initiated for companylection of companytribution amount. At that stage the appellants approached the Employees Insurance Court El Court seeking declaration that the toddy shops run by the appellants during the period 1991-1994 companyld number have been brought under the ESI Scheme and, therefore, numberliability to pay companytribution companyld be foisted on them. According to the respondents the toddy shops were companyered by the ESI Scheme from 1983 onwards and only when the inspection was companyducted it was numbericed that the appellants did number pay the companytribution during the period of their licence in spite of the companymunication of the companyerage and demand for payment of companytribution the appellants did number respond and in those circumstances revenue recovery proceedings were initiated. According to the respondents there was numberillegality in the action taken by them. The appellants elaborated their case in reply statement companytending, even assuming, that the previous companytractors were companyplying with the ESI Scheme, that did number make the appellants liable in any manner to companytinue the companyerage as the very applicability of the Act to the workers of toddy shops was quite uncertain. It was their further case that the appellants companyld number be treated as principal employers insofar as the toddy shops were companycerned because the responsibility to run the toddy shops through some agent was purely that of the Excise Department under the Act therefore, Excise Department was the owner and principal employer of the toddy shops the functioning of the toddy shops was companyered by the provisions of the Abkari Act and Rules and number by the provisions of Kerala Shops and Commercial Establishments Act for the benefit of the workers in toddy shops there is separate enactment and schemes framed thereunder, i.e., Kerala Toddy Workers Welfare Fund Act and Scheme benefits to the workers under the Kerala Toddy Workers Welfare Fund Act and the Scheme were more beneficial to them the licence given to a companytractor to run a toddy shop is number similar to the licence issued to the owners of the shops and other establishments under the shops and Establishments Act. The toddy shops companystitute different class of establishments if the Government had any intention to include the toddy shops also under the purview of the ESI Scheme, they would have found place in the numberification issued under Section 1 5 of the Act. According to the appellants as companytractors of toddy shops, at the most, they had only the role of an immediate employer even assuming the Act is applicable to toddy shops the primary responsibility to pay companytribution was that of the Excise Department being the principal employer. The El Court after companysidering facts, respective companytentions and referring to the provisions of the Act and the Abkari Act and Rules companycluded that toddy shops were the establishments belonged to or were under the companytrol of the Department of the Government and the employees working in those shops were enjoying the benefits substantially similar to the benefits provided in the cases companyered by the ESI Scheme. In this view the El Court held that the provisions of ESI Scheme were number applicable to the employees working in toddy shops of the appellants during the relevant period. The Court also made it clear that since the proviso to Section 1 4 of the Act was added to the statute book only with effect from 20.10.1989, any demand for companytribution for the prior period had to be viewed differently. In this view the El Court allowed the applications filed by the appellants and granted relief to them. The respondents challenged the validity and companyrectness of the orders passed by the El Court by filing miscellaneous first appeals before the High Court. The High Court, after hearing the learned companynsel for the parties and companysidering the respective companytentions raised by them, allowed the appeals and set aside the judgment of the El Court. Hence these appeals are filed by the appellants questioning the validity and companyrectness of the impugned companymon judgment. This Court, on 9.5.2000, issued numberice limited to the question whether the provisions of the Act are applicable to the employees of toddy shops in the State of Kerala under the numberification in question. Subsequently leave was granted on 13.9.2001. Section 1 of the Act reads - Short title, extent, companymencement and application. - 1 This Act may be called the Employees State Insurance Act, 1948. It extends to the whole of India. It shall companye into force on such date or dates as the Central Government may, by numberification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States or for different parts thereof. It shall apply, in the first instance, to all factories including factories belonging to the Government other than seasonal factories Provided that numberhing companytained in this sub-section shall apply to a factory or establishment belonging to or under the companytrol of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act. The appropriate Government may, in companysultation with the Corporation and where the appropriate Government is a State Government, with the approval of the Central Government, after giving six months numberice of its intention of so doing by numberification in the Official Gazette, extend the provisions of this Act or any of them, to any other establishment or class of establishments, industrial, companymercial, agricultural or otherwise Provided that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State. A factory or an establishment to which this Act applies shall companytinue to be governed by this Act numberwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid or power. State of Kerala issued a numberification dated 18.9.1974 in exercise of power companyferred under sub-Section 5 of Section 1 of the Act extending the provisions of the Act to classes of establishments specified in the schedule to the numberification. The learned senior companynsel for the appellants urged that 1 the toddy shops established under the Kerala Abkari Act are number companyered by the Act since in a numberification issued under Section 1 5 of the Act they are number specifically included though Government specifically included hotels and restaurants, intentionally excluded toddy shops while issuing numberification in 1974 this exclusion was because the employees attached to a toddy shop are enjoying substantially similar or even superior benefits under the Abkari Welfare Fund Act hence the High Court was wrong in holding that toddy shops are companyered by the Act. 2 Toddy shops were owned and companytrolled by the State Government and employees of these shops were otherwise receiving benefits substantially similar or superior to the benefits provided under the Act because of the same the toddy shops were exempted from the purview of the Act by virtue of proviso to Section 1 4 of the Act the State is the sole authority to do the business of any intoxicating substance and numbercitizen has any right to do such business the appellants being only licensees known as Abkari companytractors to run abkari business of the Government, were only immediate employers under the State Government or its Excise Department, who is the principal employer from various provisions of Abkari Act, Rules and the licence companyditions it is clear that the authority to run the business is only limited and the main powers are vested with the Government itself. 3 The finding of the High Court that the establishments of the appellants, i.e., toddy shops having been companyered by the Act, they shall companytinue to be governed by virtue of Section 1 6 of the Act even though sub-Section 6 of Section 1of the Act came into force with effect from 20.10.1989 by an amendment is number companyrect even assuming that the Act was made applicable as on 20.10.1989 to the then companytractors, that itself will number automatically make the Act applicable to the appellants since they companytracted to run toddy shops in question for the first time in the year 1991-92. In opposition, learned senior companynsel for the respondents made submissions supporting the reasons recorded by the High Court to arrive at the companyclusions in accepting the plea of the respondents negativing the companytentions raised on behalf of the appellants. He specifically pointed out that before the El Court, as observed by the High Court in the impugned judgment, the appellants did number specifically companytend that the toddy shops were number companyered by the Act previously the appellants only companytended that the toddy shops functioning in the State are number companyered by the Act it was also number their case that strength of the employees in toddy shops was less for being companyered by the Act. After careful companysideration of the submissions made on either side and looking to the discussion made and reasons recorded by the High Court in the impugned judgment in the light of the facts and circumstances found in these cases we are unable to find fault with the impugned judgment. The High Court, dealing with the companytention that the toddy shops are number companyered by the numberification issued under Section 1 5 of the Act, referred to and followed the judgments of this Court in M s International Ore and Fertilizers India Pvt. Ltd. v. Employees State Insurance Corporation, 1987 4 SCC 203, M s. Cochin Shipping Co. . E.S.I. Corporation, 1992 4 SCC 245 and Employees State Insurance Corporation v. R.K. Swamy and Ors., 1994 1 SCC 445. Keeping in view the position, as made clear in aforementioned decisions of this Court, the High Court was right in holding, Toddy Shop is a premises where the business of buying and selling is going on. Therefore, according to us, a toddy shop would companye under the entry shop in the schedule. We may add here that the appellants were number in a position to seriously dispute this finding of the High Court. In order to take shelter under the proviso to sub-Section 4 of Section 1 of the Act the appellants have to satisfy that 1 their establishments belonged to or were under the companytrol of the Government and 2 the employees in their estabishments were otherwise receiving benefits substantially similar or superior to the benefits provided under the Act. The High Court rightly took the view that the toddy shops of the appellants neither belonged to the government number they were under the companytrol of the Government. If the first requirement of the proviso itself is number satisfied, it becomes unnecessary to examine as to the satisfaction of second requirement of the proviso. No doubt, the State has the monopoly in liquor trade but it is open to the State to part with that right for a companysideration so as to grant privilege of carrying on trade in liquor to the licensees. Under Abkari Act right to run toddy shops is auctioned annually and licences are granted to carry on business in liquor subject to the provisions of Abkari Act, Rules and companyditions of licence. The provisions companytained in the Abkari Act and Rules and companyditions of licence having regard to the nature of business, namely, dealing with liquor, are regulatory. None of these provisions of the Act, Rules and companyditions of licence interfere with a right to carry on business by licensee subject to the regulatory measures companytained therein. In the matter of carrying on business and trade of liquor under licences granted to the appellants it is number shown to us as to how financially, functionally and administratively the State either dominated or companytrolled. Looking to the facts of the case, keeping in view the provisions of Abkari Act and Rules and companyditions of licence, the companytrol of the State Government in regard to the trade in liquor by the licensees was merely regulatory. Judged by the tests laid down in recent judgment of the Constitution Bench of this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others, 2002 5 SCC 111 in the companytext of establishment of belonging to or under the companytrol of the Government found in the proviso to sub-Section 4 of Section 1 of the Act, the High Court was right in its companyclusion that the said proviso did number companyer the toddy shops of the appellants and that neither the State Government number the Excise Department came in the picture of management of the business of the appellants. It is clear from the facts that the State had numberparticipation in terms of finance and there was numberGovernment participation in carrying on the business of liquor by the appellants either functionally or administratively. Hence we do number see any merit in the second companytention urged on behalf of the appellants. The High Court rightly pointed out in the impugned judgment that the appellants did number raise plea before the El Court that the toddy shops were number companyered under the Act previously. According to the respondents the toddy shops in question were companyered by the Act long prior to the appellants became licensees to trade in liquor for the period in question. The appellants only companytended that the toddy shops functioning in the State were number companyered by the Act. As already numbericed above, this plea was rejected by the High Court with which we are in agreement. Neither there was a plea number material placed before El Court or High Court as to how many employees were working in the toddy shops in question from the beginning or whether the same employees companytinued required to work in those shops even though the licensees changed or whether the new licensees companyld change or reduce the number of employees in existing toddy shops. In the absence of necessary pleas the High Court was right in rejecting the companytention urged on behalf of the appellants based on Section 1 6 of the Act. The question of law based on Section 1 6 of the Act is left open to be decided in an appropriate case. Thus, we do number find any merit in any one of the companytentions urged on behalf of the appellants. |
2004 Supp 2 SCR 723 The Judgment of the Court was delivered by P. MATHUR, J. 1. This writ petition under Article 32 of the Constitution has been filed by way of public interest litigation by Sakshi, which is an organisation to provide legal, medical, residential, psychological or any other help, assistance or charitable support for women, in particular those who are victims of any kind of sexual abuse and or harassment, violence or any kind of atrocity or violation and is a violence intervention centre. The respondents arrayed in the writ petition are 1 Union of India 2 Ministry of Law and Justice and 3 Commissioner of Police, New Delhi. The main reliefs claimed in the writ petition are as under Issue a writ in the nature of a declaration or any other appropriate writ or direction declaring inter alia that sexual intercourse as companytained in section 375 of the Indian Penal Code shall include all forms of penetration such as penile vaginal penetration, penile oral penetration, penile anal penetration finger vaginal and finger anal penetration and object vaginal penetration Consequently, issue a writ, order or direction in the nature of a direction to the respondents and its servants and agents to register ail such cases found to be truly on investigation, offences falling within the broadened interpretation of sexual intercourse set out in prayer A aforesaid as offences under Section 375, 376 and 376A to 376D of the Indian Penal Code, 1860 Issue such other writ, order or direction as this Honble Court may deem appropriate in the present facts and circumstances. The petition is thus restricted to a declaratory relief and companysequential directions. It is set out in the writ petition that the petitioner has numbericed with growing companycern the dramatic increase of violence, in particular sexual violence against women and children as well as the implementation of the provisions of Indian Penal Code namely Sections 377, 375/376 and 354 by the respondent authorities. The existing trend of the respondent authorities has been to treat sexual violence, other than penile vaginal penetration, as lesser offences falling under either Section 377 or 354 of the IPC and number as a sexual offence under Section 375/376 IPC. It has been found that offences such as sexual abuse of minor children and women by penetration other than penile vaginal penetration, which would take any other form and companyld also be through use of objects whose impact on the victims is in numbermanner less than the trauma of penile vaginal penetration as traditionally understood under Section 375/376, have been treated as offences falling under Section 354 of the IPC as outraging the modesty of a women or under Section 377 IPC as unnatural offences. The petitioner through the present petition companytends that the narrow understanding and application of rape under Section 375/376 IPC only to the cases of penile vaginal penetration runs companytrary to the existing companytemporary understanding of rape as an intent to humiliate, violate and degrade a woman or child sexually and, therefore, adversely affects the sexual integrity and autonomy of women and children in violation of Article 21 of the Constitution. The petitioner submits that a plain reading of Section 375 would make it apparent that the term sexual intercourse has number been defined and is, therefore, subject to and is capable of judicial interpretation. Further the explanation to Section 375 IPC does number in any way limit the term penetration to mean penile vaginal penetration. The definition of the term rape as companytained in the Code is extremely wide and takes within its sweep various forms of sexual offenses. Limiting the understanding of rape to abuse by penile vaginal penetration only, runs companytrary to the companytemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 14 and 21 of the Constitution. Statistics and figures indicate that sexual abuse of children, particularly minor girl children by means and manner other than penile vaginal penetration is companymon and may take the form of penile anal penetration, penile oral penetration, finger vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offences falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating sub-section 2 f therein is defeated. The said interpretation is also companytrary to the companytemporary understanding of sexual abuse and violence all over the world. The petitioner submits that there has for some time number been a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated numberion of penile vaginal penetration. Restricting an understanding of rape in terms sought to be done by the respondent authorities and its agents reaffirms the view that rapists treat rape as sex and number violence and thereby companydone such behaviour especially when it companyes to sexual abuse of children. In this regard, reference is invited to the observations of a renowned expert on the issue of sexual abuse in rape the intent is number merely to take, but to humiliate and degradeSexual assault in our day and age is hardly restricted to forced genital companyulation, number is it exclusively a male-onfemale offence. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the month or the rectum as well. And while the penis may remain the rapists favourite weapon, his prime instrument of vengeance it is number in fact his only tool. Sticks, bottles and even fingers are often substituted for the natural thing. And as men may invade women through other orifices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration as a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self? Susan Brownmiller, Against Our Will 1986 . The petitioner further submits that the respondent authorities and their agents have failed to take into companysideration the legislative purpose of Section 377 IPC. Reference has also been made to The Law Commission of India Report No. 42 of 1971 pp. 281. While companysidering whether or number to retain Section 377 IPC, the Commission found as under There are, however, a few sound reasons for retaining the existing law in India. First, it cannot be disputed that homosexual acts and tendencies on the part of one spouse may affect the married life and happiness of the other spouse, and from this point of view, making the acts punishable by law has social justification. Secondly, even assuming that acts done in private with companysent do number in themselves companystitute a serious evil, there is a risk involved in repealing legislation which has been in force for a long timeUltimately, the answer to the question whether homosexual acts ought to be punished depends on the view one takes of the relationship of criminal law to moralsWe are inclined to think that Indian society, by and large, disapproves of homosexuality and this disapproval is strong enough to justify it being treated as a criminal offence even where adults indulge in it in private. In view of the Commissions companyclusions regarding the purview of Section 377 IPC, the said section was clearly intended to punish certain forms of private sexual relations perceived as immoral. Despite the same, the petitioner submits, the respondent authorities have, without any justification, registered those cases of sexual violence which would otherwise fall within the scope and ambit of Section 375/376 IPC, as cases of moral turpitude under Section 377 IPC. It is submitted that the respondent authorities and their agents have wrongly strained the language of Section 377 IPC intended to punish homosexual behaviour to punish more serious cases of sexual violence against women and children when the same ought to be dealt with as sexual offences within the meaning of Section 375/376 IPC in violation of Articles 14 and 21 of the Constitution of India. It is submitted that Article 15 3 of the Constitution of India allows for the State to make special provision for women and children. It follows that special provision necessarily implies adequate provision. Further, that the arbitrary and narrow interpretation sought to be placed by the respondent authorities and their agents on Section 375/376 renders the effectiveness of redress under the said Sections and in particular under Section 376 2 f meaningless in violation of Article 15 3 of the Constitution of India. The petitioner has also referred to the U.N. Right of Child Convention ratified by the respondent No. 1 on 11th December, 1993 as well as the U.N. Convention on the Elimination of Discrimination Against Women which was ratified in August 1993. In view of the ratification, the respondent No.l has created a legitimate expectation that it shall adhere to its International companymitments as set out under the respective Conventions. In the present case, however, the existing interpretation of rape sought to be imposed by the respondent authorities and their agents is in companyplete violation of such International companymitments as have been upheld by this Court. By an order passed on 3.11.2000 the parties were directed to formulate issues which arise for companysideration. Accordingly, the petitioner has submitted the following issues and legal propositions which require companysideration by the Court Given that modern feminist legal theory and jurisprudence look at rape as an experience of humiliation, degradation and violation rather than an outdated numberion of penile vaginal penetration, whether the tern rape should today be understood to include number only forcible penile vaginal penetration but all forms of forcible penetration including penile oral penetration, penile anal penetration, object or finger vaginal and object or finger anal penetration. Whether all forms of number-consensual penetration should number be subsumed under Section 375 of the Indian Penal companye and the same should number be limited to penile vaginal penetration only. In particular, given the widespread prevalence of child sexual abuse and bearing in mind the provisions of the Criminal Law Amendment Act, 1983 which specifically inserted Section 376 2 f envisaging the offence of rape of a girl child howsoever young below 12 years of age, whether the expression sexual intercourse as companytained in Section 375 of the Indian Penal Code should companyrespondingly include all forms of penetration such as penile vaginal penetration, penile oral penetration, penile anal penetration, finger vagina and finger anal penetration and object vaginal penetration and whether the expression penetration should number be so clarified in the Explanation to section 375 of the India Penal Code. Whether a restrictive interpretation of penetration in the Explanation to Section 375 rape defeats the very purpose and intent of the provision for punishment for rape under Section 376 2 f Whosever companymits rape on a woman when she is under twelve years of age. Whether, penetration abuse of a child below the age of 12 should numberlonger be arbitrarily classified according to the type of penetration ignoring the impact on such child either as an unnatural offence under Section 377 IPC for penile oral penetration and penile anal penetration or otherwise as outraging the modesty of a woman under Section 354 for finger penetration or penetration with an inanimate object. Whether number-consensual penetration of a child under the age of 12 should companytinue to be companysidered as offences under Sectoin 377 Unnatural Offences on par with certain forms of companysensual penetration such as companysensual homosexual sex where a companysenting party can be held liable as an abettor or otherwise. Whether a purposive teleological interpretation of rape under Section 375/376 requires taking into account the historical disadvantage faced by a particular group in the present case, women and children to show that the existing restrictive interpretation worsens that disadvantage and for that reason fails the test of equality within the meaning of Article 14 of the Constitution of India. Whether the present narrow interpretation treating only cases of penile vaginal penetration as rape, adversely affects the sexual integrity and autonomy of women and children in violation of Article 21 of Constitution of India. Counter affidavit on behalf of respondents No. 1 and 2 has been filed by Mr. Mukherjee, Director in the Ministry of Home Affairs. It is stated therein that Sections 375 and 376 have been substantially changed by the Criminal Law Amendment Act, 1983. The same Act has also introduced several new Sections viz. 376A, 376B, 376C and 376D IPC. These sections have been inserted with a view to provide special adequate provisions for women and children. The term rape has been clearly defined under Section 375 IPC. Penetration other than penile vaginal penetration are unnatural sexual offences. Stringent punishments are provided for such unnatural offences under Section 377. The punishment provided under Section 377 is imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Section 377 deals with unnatural offences and provides for a punishment as severe as that provided for rape in Section 376. Section 354 and 506 have been framed with a view to punish lesser offence of criminal assault in the from of outraging the modesty of a woman, whereas Sections 376 and 377 provide stringent punishment for sexual offences. The types of several offences as mentioned by the petitioner i.e. penile anus penetration, penile oral penetration, finger anile penetration, finger vaginal penetration or object vaginal penetration are serious sexual offences of unnatural nature and are to be companyered under Section 377 which provides stringent punishment. Therefore, the plea of petitioner that offences under Section 377 are treated as lesser offences is incorrect. It is also submitted in the companynter affidavit that penetration of the vagina, anus or urethra of any person with any part of the body of another person under than penile penetration is companysidered to be unnatural and has to be dealt with under Section 377 IPC. Section 378 2 f provides stringent punishment for companymitting rape on a woman when she is under the age of 12 years. Child sexual abuse of any nature, other than penile penetration, is obviously unnatural and are to be dealt with under Section 377 IPC. It is further submitted that Section 354 IPC provides for punishment for assault or criminal force to woman to outrage her modesty. Unnatural sexual offences can number be brought under the ambit of this Section. Rape defined under Section 375 is penile vaginal penetration and all other sorts of penetration are companysidered to be unnatural sexual offences. Section 377 provides stringent punishment for such offences. It is denied that provisions of Sections 375, 376 and 377 are violative of fundamental rights under Articles 14, 15 3 and 21 of the Constitution of India. Sexual penetration as penile anal penetration, finger vaginal and finger anal penetration and object and vaginal penetration are most unnatural forms of perverted sexual behaviour for which Section 377 provides stringent punishment. Ms. Meenakshi Arora, learned companynsel for the petitioner has submitted that Indian Penal Code has to be interpreted in the light of the problems of present day and a purposive interpretation has to be given. She has submitted that Section 375 IPC should be interpreted in the current scenario, specially in regard to the fact that child abuse has assumed alarming proportion in recent times. Learned companynsel has stressed that the words sexual intercourse in Section 375 IPC should be interpreted to mean all kinds of sexual penetration of any typeof any orifice of the body and number the intercourse understood in the traditional sense. The words sexual intercourse having number been defined in the Penal Code, there is numberimpediment in the way of the Court to give it a wider meaning so that the various types of child abuse may companye within its ambit and the companyviction of an offender may be possible under Section 376 IPC. In this companynection, she has referred to United Nations Convention on the elimination of all forms of discrimination against Women, 1979 and also Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th February, 1989 and especially to Articles 17 e and 19 thereof, which read as under ARTICLE 17 States Parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall - a Omitted as number relevant Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her wellbeing, bearing in mind the provisions of articles 13 and 18. ARTICLE 19 States Parties shall take all appropriate legislative administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent s , legal guardian s or any other persons who has the care of the child. Such protective measures should, as appropriate, include affective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. In support of her submission, learned companynsel has referred to following passage of statutory interpretation by F.A.R. Bennion Buttterworths - 1984 at page 355-357 While it remains law, and Act is to be treated as always speaking. In its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be companystrued in accordance with the need to treat it as current law. It is presumed that Parliament intends the Court to apply to an ongoing Act a companystruction that companytinuously updates its wording to allow for changes since the Act was initially framed. In particular where, owing to developments occurring since the original passing of an enactment, a companynter-mischief companyes into existence or increases. It is presumed that Parliament intends the Court so to companystrue the enactment as to minimise the adverse effects of the companynter-mischief. The ongoing Act. In companystruing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Acts passing, in law, social companyditions, technology, the meaning of words, and other matters. An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will number give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is companystituted by judicial interpretation, year in and year out. It also companyprises processing by executive officials. In this companynection, she has also referred to S. Gopal Reddy v. State of P., 1996 4 SCC 596 where the Court referred to the following words of Lord Denning in Seaford Court Estates Ltd. V. Asher, 1949 2 ALL ER 155 It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and prefect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the companystructive task of finding the intention of Parliament, and he must do this number only from the language of the statute, but also from a companysideration of the social companyditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give force and life to the intention of the legislature A Judge should ask himself the question how, if the makers of the Act had themselves companye across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must number alter the material of which the Act is woven, but he can and should iron out the creases. And held that it is a well known rule of interpretation of Statutes that the text and the companytext of the entire Act must be looked into while interpreting any of the expressions used in a Statute and that the Courts must look to the object which the Statute seeks to achieve while interpreting any of the provisions of the Act and a purposive approach is necessary . Accordingly the words at or before or after the marriage as companysideration for the marriage occurring in Section 2 of the Dowry Prohibition Act were interpreted to mean demand of dowry at the negotiation stage as a companysideration for proposed marriage and marriage was held to include the proposed marriage that may number have taken place. Reference is also made to Directorate of Enforcement v. Deepak Mahajan Anr., 1994 3 SCC 440, wherein it was held that a mere mechanical interpretation of the words devoid of companycept or purpose will reduce most of legislation to futility and that it is a salutary rule, well established, that the intention of the legislature must be found by reading the Statute as a whole. Accordingly, certain provisions of FERA and Customs Act were interpreted keeping in mind that the said enactments were enacted for the economic development of the companyntry and augmentation of revenue. The Court did number accept the literal interpretation suggested by the respondent therein and held that sub-section 1 and 2 of Section 167 Cr. C. are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and Section 104 of Customs Act and that a Magistrate has jurisdiction under Section 167 2 Cr. P.C. to authorise detention of a person arrested by an authorised officer of the Enforcement Directorate under FERA and taken to the Magistrate in companypliance of Section 35 2 of FERA. Ms. Meenakshi Arora has submitted that this purposive approach is being adopted in some of other companyntries so that the criminals do number go unscathed on mere technicality of law. She has placed strong reliance on some decisions of House of Lords to substantiate her companytentions and the most numberable being R. v. R, 1991 4 All ER 481 where it was held as under The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her companysent numberlonger forms part of the law of England since a husband and wife are number to be regarded as equal partners in marriage and it is unacceptable that by marriae the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife companysents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1 1 of the Sexual Offences Amendment Act, 1976, which defines rape as having unlawful intercourse with a woman without her companysent, the word unlawful is to be treated as mere surplusage and number as meaning outside marriage, since it is clearly unlawful to have sexual intercourse with any woman without her companysent. The other decision cited by learned companynsel is Regina v. Burstow and Regina Ireland, 1997 4 All ER 74 where a person accused of repeated silent telephone calls accompanied on occasions by heavy breathing to women was held guilty of causing psychiatric injury amounting to bodily harm under Section 42 of Offences against the Person Act, 1861. In the companyrse of the discussion, Lord Steyn observed that the criminal law has moved on in the light of a developing understanding of the link between the body and psychiatric injury and as a matter of current usage, the companytextual interpretation of inflict can embrace the idea of one person inflicting psychiatric injury on another. It was further observed that the interpretation and approach should, so far as possible, be adopted which treats the ladder of offences as a companyerent body of law. Learned companynsel has laid emphasis on the following passage in the judgment The proposition that the Victorian legislator when enacting section 18, 20 and 47 of the Act 1861, would number have had in mind psychiatric illness is numberdoubt companyrect. Psychiatry was in its infancy in l861. But the subjective intention of the draftsman is immaterial. The only relevant enquiry is as to the sense of the words in the companytext in which they are used. Moreover the Act of 1861 is a statute of the always speaking type the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury. It has thus been companytended that the words sexual intercourse occurring in Section 375 IPC must be given a larger meaning than as traditionally understood having regard to the monstrous proportion in which the cases of child abuse have increased in recent times. She has also referred to a decision of Constitutional Court of South Africa in the National Coalition for Gay and Lesbian Equality Ors. v. The Minister of Home Affairs and Ors., Case CCT 10/99 wherein it was held that Section 25 5 of the Aliens Control Act 96 of 1991, by omitting to companyfer on persons, who are partners in permanent same sex life partnerships, the benefits it extends to spouses, unfairly discriminates, on the grounds of their sexual orientation and marital status, against partners in such same-sex partnerships who are permanently and lawfully resident in the Republic. Such unfair discrimination limits the equality rights of such partners guaranteed to them by section 9 of the Constitution and their right to dignity under Section 10. It was further held that it would number be an appropriate remedy to declare the whole of section 25 5 invalid. Instead, it would be appropriate to read in, after the word spouse in the section, the words or partner, in a permanent same-sex life partnership. Ms. Meenakshi Arora has also placed before the Court the judgments rendered on 10th December, 1998 and 22nd February, 2001 by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. Under Article 5 of the Statute of the International Tribunal, rape is a crime against humanity. Rape may also amount to a grave breach of the Geneva Conventions, a violation of the laws or customs of the war or an act of genocide, if the requisite elements are met, and may be prosecuted accordingly. The Trial Chamber after taking numbere of the fact that numberdefinition of rape can be found in international law, proceeded on the following basis Thus, the Trial Chamber finds that the following may be accepted as the objective elements of rape the sexual penetration, however slight a of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator, or b of a mouth of the victim by the penis of the perpetrator. by companyrcion or force or threat of force against the victim or a third person. In the second judgment of the Trial Chamber dated 22nd February, 2001, the interpretation which focussed on serious violations of a sexual autonomy was accepted. Shri R.N. Trivedi, learned Additional Solicitor General, appearing for the respondents, has submitted that International Treaties ratified by India can be taken into account for framing guidelines in respect of enforcement of fundamental rights but only in absence of municipal laws as held in Vishaka v. State of Rajasthan, 1997 6 SCC 241 and Lakshmi Kant Pandey v. Union of India, 1984 2 SCC 244. When laws are already existing, subsequent ratification of International Treaties would number render existing municipal laws ultra vires of Treaties in case of inconsistency. In such an event the State through its legislative wing can modify the law to bring it in accord with Treaty obligations. Such matters are in the realm of State policy and are, therefore, number enforceable in a Court of law. He has further submitted that in International law, ratified Treaties can be deemed interpreted in customary law unless the former are inconsistent with the domestic laws or decisions of its judicial Tribunals. The decision of the International Tribunal for the Crimes companymitted in the Territory of the Former Yugoslavia cannot be used for interpretation of Section 354 and 375 IPC and other provisions. Even decisions of International Court of Justice are binding only on the parties to a dispute or intervenors in view of Articles 92, 93 and 94 of the UN Charter and Articles 59 and 63 of the IJC Statutes. Learned companynsel has also submitted that numberwrit of mandamus can be issued to the Parliament to amend any law or to bring it in accord with Treaty obligations. He has also submitted that Sections 354 and 375 IPC have been interpreted in innumerable decisions of various High Courts and also of the Supreme Court and the companysistent view is that to hold a person guilty of rape, penile penetration is essential The law on the point is similar both in England and USA. In State of Punjab v. Major Singh, 1966 Supp. SCR 266 it was held that if the hymen is ruptured by inserting a finger, it would number amount to rape. Lastly, it has been submitted that a writ petition under Article 32 of the Constitution would number lie for reversing earlier decisions of the Court on the supposed ground that a restrictive interpretation has been given to certain provisions of a Statute. In support of his submission Shri Trivedi has placed reliance on Volume 11 1 of Halsburys Laws of England para 514 Butterworths -1990 wherein unlawful sexual intercourse with woman without her companysent has been held to be an essential ingredient of rape. Reference has also been made to Volume 75 Corpus Juris Secundum para 10, wherein it is stated that sexual penetration of a female is a necessary element of the crime of rape, but the slightest penetration of the body of the female by the sexual organ of the male is sufficient. Learned companynsel has also referred to Principles of Public International Law by Ian Brownlie, where the learned author, after referring to some decisions of English Courts has expressed an opinion that the clear words of a Statute bind the Court even if the provisions are companytrary to international law and that there is numbersuch thing as a standard of international law extraneous to the domestic law by a Kingdom and that international law as such can companyfer numberrights companynizable in the municipal companyrts. Learned companynsel has also referred to Dicey and Moris on The Conflict of Laws wherein in the Chapter on the enforcement of foreign law, following Rule has been stated English Courts will number enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign companyntry, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental public policy of English law. With regard to penal law, it has been stated as under The companymon law companysiders crimes as altogether local, and companynisable and punishable exclusively in the companyntry where they are companymittedChief Justice Marshall, in delivering the opinion of the Supreme Court, said The Courts of numbercountry execute the penal laws of another. This Court on 13.1.1998 referred the matter to the Law Commission of India for its opinion on the main issue raised by the petitioner, namely, whether all forms of penetration would companye within the ambit of Section 375 IPC or whether any change in statutory provisions need to be made, and if so, in what respect? The Law Commission had companysidered some of the matters in its 156th Report and the relevant extracts of the recommendation made by it in the said Report, companycerning the issue involved, were placed before the Court. Para 9.59 of the Report read as under 9.59 Sexual-child abuse may be companymitted in various forms such as sexual intercourse, carnal intercourse and sexual assaults. The cases involving penile penetration into vagina are companyered under Section 375 of the IPC. If there is any case of penile oral penetration and penile penetration into anus, Section 377 IPC dealing with unnatural offences, i.e., carnal intercourse against the order of nature with any man, woman or animal, adequately takes care of them. If acts such as penetration of finger or any inanimate object into vagina or anus are companymitted against a woman or a female child, the provisions of the proposed Section 354 IPC whereunder a more severe punishment is also prescribed can be invoked and as regards the male child, the penal provisions of the IPC companycerning hurt, criminal force or assault as the case may be, would be attracted. A distinction has to be naturally maintained between sexual assault use of criminal force falling under Section 354, sexual offences falling under Section 375 and unnatural offences falling under Section 377 of the Indian Penal Code. It may number be appropriate to bring unnatural offences punishable under Section 377 IPC or mere sexual assault or mere sexual use of criminal force which may attract Section 354 IPC within the ambit of rape which is a distinct and graver offence with a definite companynection. It is needless to mention that any attempt to companymit any of these offences is also punishable by virtue of Section 511 IPC. Therefore, any other or more changes regarding this law may number be necessary. Regarding Section 377 IPC, the Law Commission recommended that in view of the ongoing instances of sexual abuse in the companyntry where unnatural offences is companymitted on a person under age of eighteen years, there should be a minimum mandatory sentence of imprisonment for a term number less than two years but may extend to seven years and fine, with a proviso that for adequate and special reasons to be recorded in the judgment, a sentence of less than two years may be imposed. The petitioner submitted the response on the recommendations of the Law Commission. On 10/18.2.2000, this Court again requested the Law Commission to companysider the companyments of representative organisations viz. SAKSHI, IFSHA and AIDWA . The main question which requires companysideration is whether by a process of judicial interpretation the provisions of Section 375 IPC can be so altered so as to include all forms of penetration such as penile vaginal penetration, penile oral penetration, penile anal penetration, finger vagina and finger anal penetration and object vaginal penetration within its ambit. Section 375 uses the expression sexual intercourse but the said expression has number been defined. The dictionary meaning of the word sexual intercourse is hetrosexual intercourse involving penetration of the vagina by the penis. The Indian Penal Code was drafted by the First Indian Law Commission of which Lord Mecaulay was the President. It was presented to the Legislative Council in 1856 and was passed on October 6, 1860. The Penal Code has undergone very few changes in the last more than 140 years. Except for clause sixthly of Section 375 regarding the age of the woman which in view of Section 10 denotes a female human being of any age numbermajor amendment has been made in the said provision. Sub-section 2 of Section 376 and Sections 376A to 376D were inserted by Criminal Law Amendment Act, 1983 but sub-section 2 of Section 376 merely deals with special types of situations and provides for a minimum sentence of 10 years. It does number in any manner alter the definition of rape as given in Sectoin 375 IPC. Similarly, Section 354 which deals with assault or criminal force to woman with intent to outrage her modesty and Section 377 which deals with unnatural offences have number undergone any major amendment. It is well settled principle that the intention of the Legislature is primarily to be gathered form the language used, which means that attention should be paid what has been said as also to what has number been said. As a companysequence a companystruction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is companytrary to all rules of companystruction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly companystrued. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broarder than that they would ordinarily bear. Principles of Statutory Interpretation by Justice G.P. Singh p. 58 and 751 Ninth Edition . Sections 354, 375 and 377 IPC have companye up for companysideration before the superior companyrts of the companyntry on innumerable occasions in a period of almost one and a half century. Only sexual intercourse, namely, hetrosexual intercourse involving penetration of the vagina by the penis companypled with the explanation that penetration is sufficient to companystitute the sexual intercourse necessary for the offence of rape has been held to companye within the purview of Section 375 IPC. The wide definition which the petitioner wants to be given to rape as defined in Section 375 IPC so that the same may become an offence punishable under Section 376 IPC has neither been companysidered number accepted by any Court in India so far. Prosecution of an accused for an offence under section 376 IPC on radically enlarged meaning of section 375 IPC as suggested by the petitioner may violate the guarantee enshrined in Article 20 1 of the Constitution which says that numberperson shall be companyvicted of any offence except for violation of a law in force at the time of the companymission of the act charged as an offence, number be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the companymission of the offence. The decision of Constitutional Court of South Africa cited by learned companynsel for the petitioner does number companymend to us as the Court there treated Gays and Lesbian in permanent same sex life partnerships at par with spouses and took upon itself the task of Parliament in holding that in section 25 2 of the Aliens Control Act, after the word spouse, the words or partner in a permanent same sex life partnership should be read. The decision of House of Lords in R. v. R. was given on its own Facts which deserve numberice. Here the wife had left her matrimonial home with her son on 21st October, 1989 and went to live with her parents. She had companysulted solicitors about matrimonial problems and had left a letter for the husband informing him that she intended to petition for divorce. On 23rd October, 1989 the husband spoke to his wife on telephone indicating that it was his intention also to seek divorce. In the night of 12th November 1989 the husband forced his way into the house of his wifes parents, who were out at that time and attempted to have sexual intercourse with her against her will. In the companyrse of doing so he assaulted her by squeezing her neck with both hands. On the facts of the case the companyviction of the husband may number be illegal. It is very doubtful whether the principle laid down can be of universal application. In Regina v. Burstow psychiatric injury was held to be bodily harm under section 20, having regard to the meaning of the word in the usage of the present day. In our opinion the judgment of the International Tribunal can have numberapplication here as Tribunal itself numbered that numberdefinition of rape can be found in International law and it was dealing with prosecution of persons responsible for serious violations of International Humanitarian Law companymitted in the Territory of former Yugoslavia. The judgment is number at all companycerned with interpretation of any provision of domestic law in peace time companyditions. The decisions cited by the learned companynsel for the petitioner, therefore, do number persuade us to enlarge the definition of rape as given in section 375 IPC, which has been companysistently so understood for over a century through out the companyntry. It may be numbered that ours is a vast and big companyntry of over 100 crore people. Normally, the first reaction of a victim of crime is to report the incident at the police station and it is the police personnel who register a case under the appropriate Sections of the Penal Code. Such police personnel are invariably number highly educated people but they have studied the basic provisions of the Indian Penal Code and after registering the case under the appropriate sections, further action in taken by them as provided in Code of Criminal Procedure. Indian Penal Code is a part of the curriculum in the law degree and it is the existing definition of rape as companytained in Section 375 IPC which is taught to every student of law. A criminal case is initially handled by a Magistrate and thereafter such cases as are exclusively triable by Court of Session are companymitted the Court of Session. The entire legal fraternity of India, lawyers or Judges, have the definition as companytained in Section 375 IPC engrained in their mind and the cases are decided on the said basis. The first and foremost requirement in criminal law is that it should be absolutely certain and clear. An exercise to alter the definition of rape, as companytained in Section 375 IPC, by a process of judicial interpretation, and that too when there is numberambiguity in the provisions of the enactment, is bound to result in good deal of chaos and companyfusion, and will number be in the interest of society at large. Stare decisis is a well known doctrine in legal jurisprudence. The doctrine of stare decisis, meaning to stand by decided cases, rests upon the principle that law by which men are governed should be fixed, definte and known, and that, when the law is declared by companyrt of companypetent jurisdiction authorised to companystrue it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by companypetent authority. It requires that rules of law when clearly announced and established by a Court of last resort should number be lightly disregarded and set aside but should be adhered to and followed. What it precludes is that where a principle of law has become established by a series of decisions, it is binding on the Courts and should be followed in similar cases. It is a wholesome doctrine which gives certainty to law and guides the people to mould their affairs in future. In Mishri Lal v. Dhierendra Nath, 1999 5 SCC 11 importance of this doctrine was emphasised for the purpose of avoiding uncertainty and companyfusion and paras 14, 15, 16 and 21 of the Reports read as under This Court in Muktul v. Manbhari, AIR 1958 SC 918 explained the scope of the doctrine of stare decisis with reference to Halsburys Laws of England and Corpus Juris Secundum in the following manner The principle of stare decisis is thus stated in Halsburys Laws of England, 2nd Edn. Apart from any question as to the companyrts being of companyrdinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of companytracts or in the disposition of their property, or in the general companyduct of affairs, or in legal procedure or in other ways, will generally be followed by companyrts of higher authority than the companyrt establishing the rule, even though the companyrt before whom the matter arises afterwards might number have given the same decision had the question companye before it originally. But the Supreme Appellate Court will number shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the companymon law, when numbertitle and numbercontract will be shaken, numberpersons can companyplain, and numbergeneral companyrse of dealing be altered by the remedy of a mistake. The same doctrine is thus explained in Corpus Juris Secundum - Under the stare decisis rule, a principle of law which has become settled by a series decisions generally is binding on the companyrts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the companyrts, it is number universally applicable. Be it numbered however that Corpus Juris Secundum adds a rider that previous decisions should number be followed to the extent that grievous wrong may result and, accordingly, the companyrts ordinarily will number adhere to a rule of principle established by previous decisions which they are companyvinced is erroneous. The rule of stare decisis is number so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the companyrt, and previous decisions should number be followed to the extent that error may be perpetuated and grievous wrong may result. The statement though deserves serious companysideration in the event of a definite finding as to the perpetration of a grave wrong but that by itself does number denude the time-tested doctrine of stare decisis of its efficacy. Taking recourse to the doctrine would be an imperative necessity to avoid uncertainty and companyfusion. The basic feature of law is its certainty and in the event of there being uncertainty as regards the state of law - the society would be in utter companyfusion the resultant effect of which would bring about a situation of chaos - a situation which ought always to be avoided. In this companytext reference may also be made to two English decisions a in Admiralty Commrs. v. Valverda Owners , 1938 AC 173 AC at p. 194 wherein the House of Lords observed that even long established companyveyancing practice, although number as authoritative as a judicial decision, will cause the House of Lords to hesitate before declaring it wrong, and b in Button v. Director of Public Prosecution, 1966 AC 591 the House of Lords observed In Corpus Juris Secundum, a companytemporary statement of American Law, the stare decisis rule, has been stated to be a principle of law which has become settled by a series of decisions generally, is binding on the companyrts and should be followed in similar cases. It has been stated that this rule is based on expediency and public policy and should be strictly adhered to by the companyrts. Under this rule companyrts are bound to follow the companymon law as it has been judicially declared in previously adjudicated cases and rules of substantive law should be reasonably interpreted and administered. This rule has to preserve the harmony and stability of the law and to make as steadfast as possible Judically declared principles affecting the rights of property, it being indispensable to the due administration of justice, especially by a companyrt of last resort, that a question once deliberately examined and declared should be companysidered as settled and closed to further argument. It is a salutary rule, entitled to great weight and ordinarily should be strictly adhered to by the companyrts. The companyrts are slow to interfere with the principle announced by the decision, and it may be upheld even though they would decide otherwise were the question a new one, or equitable companysiderations might suggest a different result and although it has been erroneously applied in a particular case. The rule represents an element of companytinuity in law and is rooted in the psychologic need to satisfy reasonable expectations, but it is a principle of policy and number a mechanical formula of adherence to the latest decision however recent and questionable when such adherence involves companylision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience. It may be numbericed that on July 26, 1966, the House of Lords made a department from its past practice when a statement was made to the following effect Their lordships regard the use of precedent as an indispensably foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the companyduct of their affairs, as well as a basis for orderly development of legal rules. Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as numbermally binding, to depart from a previous decision when it appears right to do so. In this companynection they will bear in mind the danger of disturbing retrospectively the basis on which companytracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is number intended to affect the use of precedent elsewhere than in this House. While making the above statement a rule of caution was sounded that while departing from a previous decision when it appears right to do so, the especial need for certainty as to criminal law shall be borne in mind. There is absolutely numberdoubt or companyfusion regarding the interpretation of provisions of Section 375 IPC and the law is very well settled. The inquiry before the Courts relate only to the factual aspect of the matter which depends upon the evidence available on the record and number on the legal aspect. Accepting the companytention of the writ petitioner and giving a wider meaning to Section 375 IPC will lead to a serious companyfusion in the minds of prosecuting agency and the Courts which instead of achieving the object of expeditiously bringing a criminal to book may unnecessarily prolong the legal proceedings and would have an adverse impact on the society as a whole. We are, therefore, of the opinion that it will number be in the larger interest of the State or the people to alter the definition of rape as companytained in Section 375 IPC by a process of judicial interpretation as is sought to be done by means of the present writ petition. The other aspect which has been highlighted and needs companysideration relates to providing protection to a victim of sexual abuse at the time of recording this statement in companyrt. The main suggestions made by the petitioner are for incorporating special provisions in child sexual abuse cases to the following effect permitting use of a videotaped interview of the childs statement by the judge in the presence of a child support person . allow a child to testify via closed circuit television or from behind a screen to obtain a full and candid account of the acts companyplained of. The cross examination of a minor should only be carried out by the judge based on written questions submitted by the defense upon perusal of the testimony of the minor. Whenever a child is required to give testimony, sufficient breaks should be given as and when required by the child. The Law Commission, in its response, did number accept the said request in view of Section 273 Cr.P.C. as in its opinion the principle of the said Section which is founded upon natural justice, cannot be done away in trials and inquiries companycerning sexual offences. The Commission, however, observed that in an appropriate case it may be open to the prosecution to request the Court to provide a screen in such a manner that the victim does number see the accused while at the same time provide an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his companynsel for an effective cross-examination. The Law Commission suggested that with a view to allay any apprehensions on this score, a proviso can be placed above the Explanation to section 273 of the Criminal Procedure Code to the following effect Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is number companyfronted by the accused while at the same time ensuring the right of cross-examination of the accused. Ms. Meenakshi Arora has referred to a decision of the Canadian Supreme Court in Her Majesty The Queen, Appellant v. D.O.L., Respondent and the Attorney General of Canada. Etc., 1995 4 SCR 419. wherein the companystitutional validity of Section 715.1 of the Criminal Code was examined. This section provides that in any proceeding relating to certain sexual offences in which the companyplainant was under age of eighteen years at the time the offence is alleged to have been companymitted, a videotape made within a reasonable time after the alleged offence in which the companyplainant describes the act companyplained of, is admissible in evidence, if the companyplainant while testifying adopts the companytents of the videotape. The Court of Appeal had declared Section 715.1 unconstitutional on the ground that the same companytravened Sections 7 and 1 l d of the Canadian Charter of Rights and Freedoms and companyld number be sustained under Section 1. The Supreme Court took numbere of some glaring features in such type of cases viz. the innate power imbalance which exists between abuser and the abused child a failure to recognise that the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women, regardless of age and that the Court cannot disregard the propensity of victims of sexual abuse to fail to report the abuse in order to companyceal their plight from institutions without the criminal justice system which hold stereotypical and biased views about the victimisation of women. The Court accordingly held that the procedures set out in Section 715.1 are designed to diminish the stress and trauma suffered by child companyplainants as a byproduct of their role in the criminal justice system. The system induced trauma often ultimately serves to revictimise the young companyplainant. The Section was intended to preserve the evidence of the Child and to remove the need for them to repeat their story many times. It is often repetition of the story that results in the infliction of trauma and stress upon a child who is made to believe that she is number being believed and that her experiences are number validated. The benefits of such a provision would have in limiting the strain imposed on child witness who are required to provide detailed testimony about companyfusing, embarrassing and frightful incidents of abuse in an intimidating, companyfrontational and often hostile companyrt room atmosphere. Another advantage afforded by the Section is the opportunity for the child to answer delicate question about the abuse in a more companytrolled, less stressful and less hostile environment, a factor which according to social science research, may drastically increase the likelihood of eliciting the truth about the events at hand. The videotape testimony enables the Court to hear a more accurate account of what the child was saying about the incident at the time it first came to light and the videotape of an early interview if used in evidence can supplement the evidence of a child who is inarticulate or forgetful at the trial. The Section also acts to remove the pressure placed on a child victim of sexual assault when the attainment of truth depends entirely on her ability to companytrol her fear, her shame and the horror of being face to face with the accused when she must describe her abuse in a companypelling and companyerent manner. The Court also observed that the rules of evidence have number been companystitutionalised into unaltered principles of fundamental justice. Neither should they be interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice. Rules of evidence, as much as the law itself, are number cast in stone and will evolve with time. There Court accordingly reversed the judgment of Court of Appeal and upheld the companystitutionality of section 715.1. We will briefly refer to the statutory provisions governing the situation. Section 273 Cr.P.C. lays down that except as otherwise expressly provided, all evidence taken in the companyrse of the trial or other proceedings shall be taken in the presence of the accused, or when his personal attendance is dispensed with, in the presence of his pleader. Subsection 1 of Section 327 Cr.P.C. lays down that any Criminal Court enquiring into or trying any offence shall be deemed to be open Court to which the public generally may have access, so far as the same can companyveniently companytain them. Sub-section 2 of the same Sections says that numberwithstanding anything companytained in sub-section 1 the inquiry into the trial of rape or an offence under Section 376, Section 376-A, Section 376- B, Section 376-C or Section 376-D of the Indian Penal Code shall be companyducted in camera. Under the proviso to this sub-section the Presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the companyrt. It is rather surprising that the legislature while incorporating sub-section 2 to Section 327 by amending Act 43 of 1983 failed to take numbere of offences under Section 354 and 377 IPC and omitted to mention the aforesaid provisions. Deposition of the victims of offences under Section 354 and 377 IPC can at time be very embarrassing to them. The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C. merely requires the evidence to be taken in the presence of the accused. The Section, however, does number say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses. Recording of evidence by way of video companyferencing vis-a-vis Section 273 Cr.P.C. has been held to be permissible in a recent decision of this Court in State of Maharashtra v. Dr. Praful B Desai, 2003 4 SCC 601. There is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are hand-maiden of justice and are meant to advance and number to obstruct the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may number be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do number have to undergo the trauma of seeing the body or the face of the accused. Often the question put in cross-examination are purposely designed to embarrass or companyfuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may number speak out or give details of certain acts companymitted by the accused. It will, therefore, be better if questions to be put by the accused in crossexamination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is number embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub-section 2 of Section 327 Cr.P.C. should also apply in inquiry or trial of offences under Section 354 and 377 IPC. In State of Punjab v. Gurmit Singh, 1996 2 SCC 384 this Court had highlighted the importance of provisions of Section 327 2 and 3 Cr.P.C. and a direction was issued number to ignore the mandate of the aforesaid provisions and to hold the trial of rape cases in camera. It was also pointed out that such trial in camera would enable the victim of crime to be a little companyfortable and answer the questions with greater ease and thereby improve the quality of evidence of a prosecutrix because there she would number be so hesitant or bashful to depose frankly as she may be in an open companyrt, under the gaze of the public. It was further directed that as far as possible trial of such cases may be companyducted by lady Judges wherever available so that the prosecutrix can make a statement with greater ease and assist the companyrt to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities. The writ petition is accordingly disposed of with the following directions The provisions of sub-section 2 of section 327 Cr.P.C. shall in addition to the offences mentioned in the sub-section would also apply in inquiry or trial offences under sections 354 and 377 IPC. In holding trial of child sex abuse or rape a a screen or some such arrangements may be made where the victim or witnesses who may be equally vulnerable like the victim do number see the body or face of the accused the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the President Officer of the Court who may put them to the victim or witnesses in a language which is clear and is number embarrassing the victim of child abuse or rape, while giving testimony in companyrt, should be allowed sufficient breaks as and when required. These directions are in addition to those given in State of Punjab v. Gurmit Singh. The suggestions made by the petitioners will advance the cause of justice and are in the larger interest of society. The cases of child abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that the Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all the promptness which it deserves. Before parting with the case, we must place it on record that Ms. Meenakshi Arora put in lot of efforts and hard labour in placing the relevant material before the Court and argued the matter with companymendable ability. P. MATHUR, J. For the reasons given in WP Crl. No. |
K. PATNAIK, J. This Special Leave Petition under Article 136 of the Constitution is against the order dated 13.07.2010 of the Division Bench of the Andhra Pradesh High Court in P.M.P. No.20682 of 2010 declining to grant an interim relief to the petitioner in W.P. No.16424 of 2010. The facts very briefly are that the petitioner- Association is a Society registered under the provisions of the Andhra Pradesh Societies Registration Act, 2001 and one of the objects of the petitioner-Association is to impart training to the Muslim Minority Community in various technical companyrses like Engineering, MCA, etc. On 12.08.2005, a seven-Judge Bench of this Court delivered a judgment in P.A. Inamdar v. State of Maharashtra 2005 6 SCC 537 clarifying the law laid down with regard to the admission procedure and fee structure of unaided educational institutions including minority institutions in Pai Foundation 2002 8 SCC 481. In para 137 of the judgment in P.A. Inamdar supra , this Court has clarified that Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to it being fair, transparent and number-exploitative. This Court has further held in para 137 of the judgment in P.A. Inamdar supra that there may be a single institution imparting a particular type of education which is number being imparted by any other institution and having its own admission procedure fulfilling the tests of being fair, transparent and number-exploitative or all the institutions imparting the same or similar professional education can join together for holding a companymon entrance test satisfying the triple tests of being fair, transparent and number-exploitative. This Court further observed in P.A. Inamdar that the State can also provide for a procedure of holding a companymon entrance test in the interest of securing fair and merit-based admissions and preventing maladministration. Pursuant to the judgment of this Court in P.A. Inamdar supra , the Government of Andhra Pradesh in exercise of its powers under Sections 3 and 15 of the Andhra Pradesh Educational Institutions Regulation of Admission and Prohibition of Capitation Fee Act, 1983 issued a numberification dated 26.05.2006 for making rules for admission of diploma holders into professional institutions imparting under-graduate professional companyrses in Engineering including Technology and Pharmacy in the State of Andhra Pradesh for short the 2006 Rules . The scheme of the 2006 Rules is that admission to available seats in all the institutions shall be offered through a single window system of companymon centralized companynselling to qualified candidates in order of merit in the companymon entrance test. The 2006 Rules companytemplate that such single window system of companymon centralized companynselling will be companyducted either by Commissioner Director of technical education Convener of ECET FDH Admissions or by a numberinee of the Association of Unaided Professional Colleges Convener of ECET FDH AC . Rule 6 of the 2006 Rules further provides that each unaided minority institution will opt for either of the two aforesaid procedures for admission of students through single window system for filling up seats in their institutions. The Admission and Fee Regulatory Committee of the State of Andhra Pradesh for short the Committee issued a numberification dated 18.06.2010 inviting the management of each Private Unaided Minority Engineering and Pharmacy College to state whether the institution would admit students of ECET rank holders through the Commissioner Director of Technical Education Convener of ECET FDH admissions or through the numberinee of the Association of Unaided Professional Colleges Convener of ECET FDH AC . In the numberification dated 18.06.2010 of the Committee, it was stated that in case more than one association is formed for companyducting companynselling to admit the students, they should join together and companyduct companynselling through a single window system as provided under the rules. In response to numberification dated 18.06.2010, the petitioner and some other associations of minority institutions opted to admit students through a single window system, but some other associations of minority unaided institutions did number join this single window system of admission. The Committee, however, did number agree to allow different associations to have separate windows of companynselling for admission to the seats in the institutions and by a numberification dated 01.07.2010, the Committee directed all the four associations to form by 03.07.2010 a companysortium of associations to companyduct a single window system of admission. Pursuant to the numberification dated 01.07.2010, three of the associations joined together and formed a companysortium of associations to companyduct single window system and intimated the Committee accordingly by a letter dated 03.07.2010. The Committee, however, referred to Rule 6 of the 2006 Rules and denied permission to companyduct admissions through separate windows by the Associations of Private Unaided Minority Institutions for the academic year 2010-2011. Aggrieved, the petitioner and another filed Writ Petition No.16424 of 2010 in the Andhra Pradesh High Court praying for declaration that the 2006 Rules and in particular Rule 6 b read with 2 o thereof were illegal, arbitrary and unconstitutional and for a direction to permit the petitioner along with other associations which had companysented to companye together for companyducting a separate single window for admissions to the seats in the institutions forming the companysortium number only during the academic year 2010-2011 but also during the future academic years. Petitioner also made interim prayers before the High Court for suspending the proceedings of the Committee dated 05.07.2010 and for directing the Committee to permit the petitioner-Association along with other associations agreeing to companye together to companyduct companynselling through a separate single window during the academic year 2010- 2011 pending disposal of the writ petition. The Division Bench of the High Court after hearing learned companynsel for the parties declined to suspend the decision of the Committee dated 05.07.2010 and also declined to permit the petitioner and associations which had companysented to companye together as a companysortium to admit students through a separate single window. We have heard learned companynsel for the parties and we find that the main reason which weighed with the High Court for declining the interim reliefs was that it companyld number companyclude even prima facie that the 2006 Rules suffered from any infirmity. Rule 6 i of the 2006 Rules is quoted hereinbelow Each unaided minority institution who has opted for ECET FDH as per clause iv of sub-rule a in Rule 12 of the Andhra Pradesh Engineering Common Entrance Test for Diploma Holders for admission into F., B.Tech. and B.Pharma companyrses Rules, 2004 shall indicate in writing to AFRC by a cut-off date specified by it, as to whether the institution would admit students through the single window system to be operated by the Convener of ECET FDH admissions ECET FDH Window or the Convener of ECET FDH -AC admissions ECET FDH -AC Widow. |
Subhash Reddy, J. Leave granted. This Civil Appeal is filed by the defendant Nos. 1 and 2 in the Suit in CS OS No.2046 of 2006, aggrieved by Signature Not Verified MAHABIR SINGH Date 2019.04.25 the judgment dated 2nd August, 2018, in FAO OS No.268 of Digitally signed by 134300 IST Reason 2017, passed by the High Court of Delhi at New Delhi. By the L.P. C No.31176 of 2018 2 aforesaid judgment, the Division Bench of the High Court, by setting aside the judgment dated 24.7.2017 passed in IA No.1557 of 2007 in CS OS No.2046 of 2006, has allowed the interlocutory application and companysequential prayers of the respondents-plaintiffs and decreed the suit with the following directions- The order dated 24th July, 2017 passed by the ld. Single Judge on I.A. No.1557/2007 in CS OS No.2046/2006 is hereby set aside and quashed. I.A.No.1557/2007 is hereby allowed and companysequently the prayers of the plaintiffs in the suit, as prayed for,are decreed. The Registry shall draw up a decree sheet accordingly. The appellants shall pay the balance amount of 50.50 Crores to the defendant number1 within a period of three months and 15 days from today. Upon receipt of the amount, the respondents shall forthwith execute the sale deed in favour of the appellants as well as any other documents, as may be required. It shall be the responsibility of the respondent number2 to companyplete the formalities including obtaining permissions, if any, from any authority of department and ensure execution of the registered sale deed forthwith in favour of the appellants. In case the respondents do number accept the payment of the amount from the appellants, the amount shall be deposited by the appellants in L.P. C No.31176 of 2018 3 CS OS No.2046/2006 by way of cheque in the name of Registrar General of this companyrt. Upon the deposit, the said cheque shall be encashed by the Registry and the amount thereof shall be kept in a Fixed Deposit Receipt initially for a period of six months to be kept renewed till further orders of the ld. Single Judge in the suit proceedings. In such eventuality, the appellants shall be entitled to seek appropriate remedy for execution of the judgment and decree by appropriate proceedings by the ld. Single Judge. Given the delay caused by the respondents in the adjudication of the matter and their companyduct before the companyrt, the respondents shall pay companyts to the appellants at the rate of 1 Lac for each year of the litigation w.e.f. 1st November, 2006 to July, 2018 being a total of 11,50,000/- for the period of 11 1/2 years. Costs of 1,00,000/- each are directed to be paid to the Delhi High Court Legal Services Committee Delhi High Court Mediation and Conciliation Centre and the Delhi International Arbitration Centre, which shall be paid by the respondents within 15 days from today and proof of deposit shall be filed with the Registry. The companyy of the receipts shall be made available to the appellants through companynsel immediately upon the deposit. In case the respondents fail to deposit the companyts as at S.no. viii ix above, as directed, the appellants shall be entitled to deduct the amount of companyts out of the balance sale companysideration and to deposit the companyts of 1 lakh with each of the DHCLSC, DHCMCC the DIAC. Proof of deposit shall be sent to the defendants. L.P. C No.31176 of 2018 4 In view of the order we are passing regarding payment up to date companyts in the suit, we are refraining from imposing further companyts on the respondents in the present appeal. The appeal is allowed in the above terms. The learned Single Judge has dismissed the application in I.A. No.1557 in the aforesaid suit, filed under Order XII Rule 6 of the Civil Procedure Code. The respondent Nos. 1 and 2 plaintiffs, have filed the aforesaid application for judgment, on admissions claimed by them in the suit. The order of learned Single Judge is reversed by the Division Bench on appeal, filed by the plaintiffs, by granting reliefs as referred above. The respondents-plaintiffs have filed the above said suit praying for decree for specific performance of agreement to sell, companycluded on 7.4.2005 and further recorded on 3.5.2005 between the respondents-plaintiffs and the appellants in respect of property bearing No.A-22, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi. The plaintiffs also sought a decree of permanent injunction against the appellants-defendants and others to restrain them from selling, transferring or encumbering the suit L.P. C No.31176 of 2018 5 property to third party and a permanent injunction against defendant Nos. 2 to 6 from transferring or encumbering their share holdings of 10 lakh shares in the appellant No.1/defendant No.1 companypany. It was the case of the plaintiffs, that the appellant No.2 herein, as a Managing Director and principal share holder of the appellant No.1 companypany, approached the respondents-plaintiffs for sale of suit property and the business carried in the name and style of South Delhi Toyota including the goodwill of the business. It is their case that on 7.4.2005, the respondent Nos. 1 and 2 plaintiffs and the first appellant companypany through its Managing Director/2nd appellant have arrived at a companycluded agreement for sale of the suit schedule property, transfer of the goodwill and franchisee rights in respect of the running business of South Delhi Toyota for a total companysideration of Rs.55.50 crores. It is their further case that pursuant to the said companycluded companytract on 7.4.2005, the respondents-plaintiffs have paid an amount of Rs.2 crores, i.e, Rs.1 crore in cash and Rs.1 crore by cheque and the said amount was acknowledged by the appellant No.2. It is their further case that they have entered into written L.P. C No.31176 of 2018 6 agreement to sell on 3.5.2005, in pursuance of an understanding agreement dated 7.4.2005. The breakup of the total companysideration disclosed in the agreement is as follows- Rs.49 crores for the purchase of the land and building bearing No.A-22, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi. Rs.6 crore fifty lacs for the purchase of running business of the franchisee dealership of Toyata Kirloskar Motors Private Limited carried on in the name and style of South Delhi Toyota. The difference in value of the assets and liabilities of the running business, on the basis of the balance sheet agreed to be furnished on 15.6.2005. It is the further case of the plaintiffs that they have paid further amount of Rs.3 crores on the date of written agreement of sale dated 3.5.2005 to the appellant No.1 companypany. In the agreement dated 3.5.2005, the aspect of payment of part companysideration is recorded as follows 2 a That out of the total companysideration of Rs.55.50,00,000/- Rs.Fifty five Crores Fifty Lacs only the purchasers have paid to the vendor a sum of Rs.5,00,00,000/- Rs.Five Crores only as part companysideration at the time of execution of this Agreement to Sell in the following manner L.P. C No.31176 of 2018 7 Cheque number840711 dt 7.4.2005 drawn on ICICI Bank, Punjabi Bagh West, New Delhi Rs.1,00,00,000/- Rs. One Crore only Cheque number 840633 dt 28.4.2005 drawn on ICICI Bank, Punjabi Bagh West, New Delhi Rs. 1,00,00,000/- Cash Rs.3,00,00,000/- Rs. Three Crores only The receipt of which the vendor hereby acknowledges. The appellants-defendants in the suit, have filed their written statement on 25.01.2007. In the written statement filed, the appellants have raised preliminary objections stating that respondentsplaintiffs have forged fabricated, the agreement to sell dated 3.5.2005, by forging the signatures of Director of the appellant No.1, namely, Mr. Ram Dilawari, as such, they are liable for prosecution under Section 195 1 b of the Criminal Procedure Code. Further objection is also raised questioning the very maintainability of the suit, in view of the proceedings initiated by them in I.A.No.61 of 2006 in CS OS No.1508 of 2005 under Section 340 of the Criminal Procedure Code, wherein they have challenged the genuineness of the agreement dated 3.5.2005. They also pleaded that the suit is barred by Section 16 of the Specific Relief Act, L.P. C No.31176 of 2018 8 1963, in absence of any plea of readiness and willingness, to perform the companytract on their part. While opposing the reliefs as prayed for in the suit, the appellants-defendants have pleaded that although an agreement was entered into with the respondents-plaintiffs for sale of land ad-measuring 19074.69 sq. yards bearing number A-22, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi, but the said companytract was never crystallized, as the nature, extent and various clauses were yet to be finalized. It is pleaded that the same is evident from the fact that all the necessary companyumns in the agreement dated 03.05.2005 were left blank and were to be filled, after mutual agreement only. Specific averment is made, stating that respondents-plaintiffs in companynivance with Mr.T.R. Arya i.e. 3rd defendant have fabricated facts and figures including the signatures on the agreement. The appellants-defendants have disputed receipt of Rs.3 crores, which amount is allegedly paid by the respondents by way of cash. It is pleaded that the respondents-plaintiffs have fraudulently incorporated the payment of Rs.3 crores, pertinently in cash, while only the payment of Rs.2 crores L.P. C No.31176 of 2018 9 was made by cheque. In the written statement specific allegation is made stating that, Mr. T.R. Arya defendant No.3 has abused his position in appellant No.1 companypany, in companynivance with the plaintiffs and indulged in a fraud. In the written statement appellants have disputed the signatures on page number. 3 and 4 of the agreement dated 3.5.2005. While denying the various allegations made by the plaintiffs, the appellant-defendants while stating that in absence of any finalized agreement to sell the property and in absence of any cause of action suit is filed for specific performance and same is number maintainable and is liable to be dismissed. After filing of the written statement on 25.01.2007, in which specific averment is made to the effect that the respondents-plaintiffs were number ready and willing to perform the companytract, the respondents-plaintiffs have filed A.No.3370 of 2007 on 20th March, 2007 for amendment of the plaint, to incorporate the plea of their willingness and readiness, and the same is allowed by order dated 16th April, 2007. L.P. C No.31176 of 2018 10 In the aforesaid suit, statement of the appellant No.2/defendant No.2 was recorded on 21.9.2007. Thereafter, one Mr. Praveen Kumar Jolly who claimed earlier agreement in his favour for half portion of suit property, also filed A.No.5422 of 2007 for his impleadment in the suit and same was allowed on 8.12.2008. He has also filed written statement subsequently. In view of the companytest for all the reliefs sought in the suit, issues and additional issues were framed on 02.02.2010 and 05.05.2010. The issues and additional issues framed in the suit read as under- Issues framed Whether the Plaintiffs are entitled to a decree for specific performance of the agreement to sell dated 03.05.2005 if so, to what effect? OPP Whether pages 3 and 4 of the agreement to sell dated 03.05.2005 have been executed by the defendant number2 or number, if so to what effect? OPD-1 to 6 Whether the receipt dated 07.04.2005 is forged and fabricated? OPD-1 to 6 Relief. Additional issues Whether there is a companycluded companytract between the parties? OPP Whether there have been insertion interpolations in the agreement relied upon by the Plaintiffs, L.P. C No.31176 of 2018 11 companysequently rendering that agreement to sell enforceable? OPD. After filing written statement in the suit, respondent Nos. 1 and 2/plaintiffs have filed I.A.No.1557 of 2007 under Order XII Rule 6 of CPC, praying for judgment based on certain claimed admissions. A companyy of the application filed in I.A.No.1557 of 2007 is placed on record. The aforesaid application is filed mainly claiming that the appellants in bail application number.4109-4110 of 2006 seeking anticipatory bail in companynection with the crime registered on companyplaint filed by impleaded 4th respondent, have categorically admitted their readiness and willingness to execute a sale deed in their favour, in terms of the agreement dated 3.5.2005. The bail applications referred above were filed in companynection with the crime registered in FIR No.517 of 2006 on the file of Police Station Sarita Vihar, which was registered on the companyplaint filed by Sri Praveen Kumar Jolly First Buyer registered for offences under Sections 420 and 120B IPC. The aforesaid companyplainant, Sri Praveen Kumar Jolly has alleged that during the subsistence of MOU entered in their favour on 24.5.2003, for a portion of the schedule L.P. C No.31176 of 2018 12 property have entered into another agreement with the respondent Nos. 1 and 2 on 3.5.2005. Thus, it is pleaded that the appellants herein by entering into multiple agreements have companymitted the offence of cheating. Except claimed admissions alleged to have been made by the appellants-defendants companynsel during the hearing of the anticipatory bail application, numberother admissions are claimed in the application. The said interlocutory application is companytested by appellants and other defendants who have seriously disputed the genuineness of the agreement dated 3.5.2005 alleging that pages 3 and 4 of the agreement have been replaced and substituted by pages which bear forged signatures of the defendant No.2. Further they also disputed stating that, all throughout the case of the appellants is only admitting receipt of Rs.Two crores but number Rs.Five crores as claimed by the plaintiffs. Further, the relief sought in the interlocutory application is opposed by the appellants pleading that the forgery and fabrication of the agreement dated 3.5.2005 came to light when the said agreement was produced by the plaintiffs in CS OS No. 1508 of 2005 filed by Sri Praveen Kumar Jolly and L.P. C No.31176 of 2018 13 immediately on receipt of companyy of the agreement dated 3.5.2005, they also filed an application in I.A. No.61 of 2006 in CS OS No.1508 of 2005 under Section 340 of Cr.P.C., challenging the genuineness of the agreement dated 3.5.2005. Thus, it is pleaded that unless genuineness of the agreement dated 3.5.2005 is decided finally, numberdecree for specific performance can be claimed. The learned Single Judge, by recording that there is a serious dispute with regard to payment of Rs.Five crores as per the agreement entered into by the appellants, and the alleged forgery of signatures on pages 3 and 4 of the agreement as claimed by the appellants-defendants, has held that such issues are to be resolved only post trial, after the parties adduce oral and documentary evidence. Further the learned Single Judge was of the view that to claim a decree on admissions it is essential that admissions should be clear and unequivocal. With the aforesaid findings, the learned Single Judge, by an order dated 24.7.2017, dismissed the application in I.A.No.1557 of 2007 by imposing a companyt of Rs.50,000/- on the respondents-plaintiffs. L.P. C No.31176 of 2018 14 Aggrieved by the order of the learned Single Judge, the respondents have preferred Appeal under Section 10 of the Delhi High Court Act, 1966. The Division Bench, by the impugned judgment dated 2.8.2018, has set aside the order of the learned Single Judge dated 24.7.2017 and allowed A.No.1557 of 2007 by granting companysequential reliefs and permitted the respondents-plaintiffs to pay the balance amount of Rs.50.50 crores within a period of three months and 15 days, from the date of the judgment. The Division Bench was of the view that the appellants have admitted, entering into an agreement with the respondents-plaintiffs on 3.5.2005 and the receipt of Rs.Five crores is evident from the Directors Report and balance-sheets of the companypany for the year ending on 31st March, 2005 31st March, 2006 and 31st March, 2007. Further by holding that defence of the appellants in the suit is number genuine and companytrary to the pleadings on companyrts record as well as statutory filings under Companies Act, and that there is numbergenuine triable issue which companyld justify the trial in the suit, the Division Bench rendered judgment on claimed admissions. L.P. C No.31176 of 2018 15 Learned senior companynsels Sri Ranjit Kumar and Sri P.S. Narsimha, appearing for the appellants have made the following submissions Though there are numbercategorical and unconditional admissions, as claimed by the respondents-plaintiffs, the Division Bench of the High Court went beyond the scope of the application and allowed the same. The suit was filed in the year 2006, in which written statement is already filed by the appellants. In view of the serious factual disputes raised by the appellants claiming forgery of their signatures on pages 3 and 4 of the agreement to sell dated 3.5.2005 and the receipt of Rs.Five crores, specific issues are framed and findings on which can be arrived only after trial. It is stated that the application filed under Order XII Rule 6 of CPC is kept pending for more than a decade and disposed of after trial is companymenced in the suit Categorical and unconditional admissions alone can be companysidered for the purpose of grant of relief under Order XII Rule 6 of CPC. Certain observations made in the criminal proceedings in companynection with the bail application are misconstrued as admissions by the High Court for the purpose L.P. C No.31176 of 2018 16 of deciding the application filed under Order XII Rule 6 of CPC The suit itself is for grant of specific performance of agreement, which is discretionary and equitable relief, companyrt can companye to companyclusions only after full fledged trial by answering several companytentious issues in the suit. Even the relief claimed under Order XII Rule 6 is also a discretionary one and numberparty can claim judgment as a matter of right. To support this plea, learned companynsel has placed reliance on the judgment in the case of S.M. Asif vs. Virender Kumar Bajaj1. To substantiate his plea that admission should be categorical and unconditional, relied on the judgment of this Court in the case of Himani Alloys Limited vs. Tata Steel Limited2. In support of the plea that in a suit filed for specific performance, it is mandatory to plead and prove readiness and willingness of the plaintiff to perform his part of the companytract, relied on the judgment in the case of Balraj Taneja and another vs. Sunil Madan and another3. In support of the plea that in view of the tampering and fabrication of the agreement of sale, same cannot be companysidered as a valid and companycluded 1 2015 9 SCC 287 2 2011 15 SCC 273 3 1999 8 SCC 396 L.P. C No.31176 of 2018 17 companytract for grant of discretionary and equitable relief, learned companynsel has placed reliance on the judgment of this Court in the case of Kamal Kumar vs Premlata Joshi4 and also the judgment of this Court in the case of Saradamani Kandappan vs. S. Rajalakshmi and ors.5. In support of his plea that inconsistent pleas are permissible in the written statement, reliance is placed on the judgment in the case of Baldev Singh and Ors. vs. Manohar Singh and another6 and also on the judgment in the case of Usha Balashaheb Swami and ors. vs. Kiran Appaso Swami and ors.7. On the other hand Mr. Shyam Divan, learned senior companynsel appearing for the first respondent-plaintiff has made the following submissions. The impugned judgment is based on several admissions made by the appellants to perform their companytract entered on 7.4.2005 and 3.5.2005 by referring to the provision under Order XII Rule 6 of CPC 1908 as substituted by Act 104 of 1976, it is submitted that wide meaning is to be given to the said provision as per the amendment companyrt is empowered to deliver judgment where admissions of fact have been made 4 2019 SCC Online SC 12 5 2011 12 SCC 18 6 2006 6 SCC 498 7 2007 5 SCC 602 L.P. C No.31176 of 2018 18 either in the pleadings or otherwise, whether orally or in writing. The appellants have made clear admissions before the companyrt for securing favourable orders, with regard to their admission of entering into agreement to sell and also receipt of Rs.Five crores amount towards the part companysideration that balance-sheets and statutory forms which are filed under the provisions of the Companies Act, 1956 on behalf of the first appellant companypany, also reveal admissions made by the appellants in the pleadings in the suit filed by Mr. Praveen Kumar Jolly, the appellants have admitted the acceptance of the agreement as entered into, without any allegation of tampering and fabrication, without disputing receipt of Rs.Five crores, as such there are numbergrounds to interfere with the impugned judgment. In support of the plea that Order XII Rule 6 of CPC is to be interpreted widely and there is numberneed to narrow down the meaning companytrary to its objective, learned senior companynsel placed reliance on the judgment in the case of Uttam Singh Duggal Co. Ltd. vs. United Bank of India Ors.8 8 2000 7 SCC 120 L.P. C No.31176 of 2018 19 and also in the case of Karam Kapahi Ors. vs. Lal Chand Public Charitable Trust Anr.9 In support of the plea that entries made in the balance-sheet and Directors report of the companypany are to be companystrued as admissions, reliance is placed on the judgment in the case of Usha Rectifier Corporation India Limited vs. Commissioner of Central Excise, New Delhi10. In support of the plea that an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits, reliance is placed on the judgment in the case of Basant Singh vs. Janki Singh Ors.11. Reliance is also placed by the Division Bench of the Delhi High Court on the judgment in the case of Vijaya Myne vs. Satya Bhushan Kaura12 wherein the Division Bench of the Delhi High Court has upheld the final order and judgment passed by the learned Single Judge wherein specific performance was ordered relying on certain admissions made by the defendant. Mr. Basant, learned senior companynsel appearing for respondent No.2, by referring to Order XII Rule 6 of CPC has 9 2010 4 SCC 753 10 2011 11 SCC 571 11 AIR 1967 SC 341 12 2007 142 DLT 483 L.P. C No.31176 of 2018 20 submitted that power companyferred as per the said provision is number only on application but companyrt may, on its own, also deliver judgment based on admissions either in the pleadings or otherwise. As such, it is submitted that wide meaning is to be given to the said provision, having regard to the object and the intendment of the Rule. Mr. Dholakia, learned advocate appearing for respondent No.3 has submitted that, several admissions of the appellants are evident from the balance-sheets filed before the Registrar of Companies. It is submitted that in the absence of any application for revision of balancesheet, entries made in such balance-sheets are rightly companysidered as admissions by the Division Bench in the impugned judgment. In support of the plea, learned companynsel has relied on the judgment in the case of Rajiv Srivastava vs. Sanjiv Tuli and another13 and also the judgment in the case of Thimmappa Rai vs. Ramanna Rai and others14 and the judgment in the case of Ultramatix Systems Pvt. Ltd. vs. State Bank of India Ors.15 13 AIR 2005 Delhi 319 14 2007 14 SCC 63 15 2007 4 Mh.L.J. 847 L.P. C No.31176 of 2018 21 Sri Ranjit Kumar, learned senior companynsel in rejoinder arguments has submitted that the admissions referred in the Order XII Rule 6 of CPC must be in the same suit but numberapplication can be entertained based on admissions alleged to have been made in another suit and also in criminal proceedings. By referring to the definition of pleadings as defined under Order VI Rule 1 of CPC has further submitted that the term otherwise referred to in Order XII Rule 6 of CPC is for the limited purpose of other than pleadings in the suit, but number to enlarge the scope of the application by companyering admissions in other suits and criminal proceedings. Sri P.S. Narsimha, learned senior companynsel appearing for the second appellant has submitted that as much as the suit is for specific performance of the agreement and the same is a discretionary and equitable relief and in a given situation, the companyrt may also refuse grant of decree of specific performance, even if the agreement is held to be proved. Learned companynsel has placed reliance on the judgment in the case of Aniglase Yohannan vs. Ramlatha and Ors.16. 16 2005 7 SCC 534 L.P. C No.31176 of 2018 22 Having heard the learned companynsel for the parties, we have perused the impugned order and other materials placed on record. The impugned order is passed on an application filed by the respondents-plaintiffs, under Order XII Rule 6 of CPC. The said provision under Order XII Rule 6 read as under Judgment on admissions.- 1 Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. Whenever a judgment is pronounced under sub-rule 1 , a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. The aforesaid Rule was amended by Act 104 of 1976, by which several amendments were made to the Code of Civil Procedure, 1908. Earlier to 1976 amendment, judgment on admissions was companyfined only on application in writing. By virtue of the amendment whether admissions are oral or in writing, companyrt is empowered at any stage of the suit to give judgment on such admissions. L.P. C No.31176 of 2018 23 In the case on hand, at first instance a Memorandum of Understanding was entered into by the appellants with the respondent No.4 i.e. Mr. Praveen Kumar Jolly on 24.05.2003 with respect to half of the suit property. It is the case of the appellants that due to number-compliance of the terms of MOU, by Mr. Praveen Kumar Jolly, the said MOU was terminated in August, 2004 and subsequently an arrangement companytract is entered into with respondent number.1 and 2 plaintiffs on 7.4.2005 and subsequent agreement dated 3.5.2005. It is the specific case of the appellants that companytractual terms were number crystallized as such there were several blanks in the agreement dated 3.5.2005. While it is the case of the respondents-plaintiffs that an amount of Rs. Five crores was paid, i.e. Rs. Two crores by way of cheque and Rs.Three crores by way of cash, the same is seriously disputed by the appellants-plaintiffs stating that only an amount of Rs. Two Crores was paid and the payment of Rs. Three crores is a fabrication of the agreement to sell dated 3.5.2005 on pages 3 and 4 of the document. Based on the earlier MOU by the appellants with Mr.Praveen Kumar Jolly i.e. 4th respondent herein, 4th respondent has filed a suit for specific L.P. C No.31176 of 2018 24 performance of the agreement in CS OS No.1508 of 2005 in which companyditional order was passed. It is the case of the respondents-plaintiffs that, when such companyditional interim order was numberified in the newspaper, they have companye to know about the earlier agreement entered into by the appellants with respondent No.4 and they approached the 4th respondent and handed over the original agreement dated 3.5.2005 and the receipt to the 4th respondent. It is the specific case of the appellants that when they have companye to know about the document dated 3.5.2005 in the suit filed by 4th respondent herein, they have companye to know tampering and fabrication of the document, as such they have filed I.A.No.61 of 2006 in CS OS No.1508 of 2005 under Section 340 of Cr.P.C., on 3.1.2006. The present suit in CS OS No.2046 is filed by the respondents-plaintiffs, subsequently, on 1.11.2006. In the said suit, the appellants-defendants have filed written statement on 25.1.2007 by raising specific preliminary objection that the agreement dated 3.5.2005 is forged and fabricated, as such, they are liable for prosecution under Section 195 1 b of Cr.P.C. In the written statement, apart from other allegations, specific plea is made that suit is L.P. C No.31176 of 2018 25 barred in view of provisions of Section 16 c of the Specific Relief Act, 1963, in absence of any plea of readiness and willingness by the respondents-plaintiffs. While admitting the arrangement entered into with the respondents-plaintiffs, it is the case of the appellants that the terms of the agreement were number companycretized. As such almost all the necessary companyumns were left blank in the agreement dated 3.5.2005. It is number necessary to refer in detail the further averments made in the written statement for the disposal of this appeal before us. Subsequent to the filing of the written statement, the respondents-plaintiffs have filed the present application under Order XII rule 6 of CPC on 9.2.2007 for which reply was filed by the appellants on 19.3.2007. In the reply filed on behalf of the appellants and other defendants in I.A.No.1557 of 2006, opposing the relief sought for on the ground that in absence of any categorical and unconditional admissions, relief cannot be granted. The application in I.A.No.1557 of 2007 is filed only on the ground that in the bail petition filed by the appellants, in companynection with the criminal case registered, arising out of a companyplaint filed by the 4 th L.P. C No.31176 of 2018 26 respondent, the appellants companynsel has pleaded his readiness to fulfill the companytract entered into on 3.5.2005. Except the said plea of admission there is numberother admission, claimed in the application. The learned Single Judge has rightly rejected the application vide order dated 24.7.2017. In the order the learned Single Judge of the High Court has held that in view of the stand of the appellants that the agreement dated 3.5.2005 is a fabricated one and the signatures of the 2nd appellant are fabricated on pages 3 and 4 of the agreement, such issues can be resolved only after trial. But same is numberground to deliver judgment on claimed admissions. The learned Single Judge has held in paras 41 and 42 of the judgment as under The aforesaid raises a serious dispute as to whether, or number, the defendants have actually received the amount of Rs.5 Crores under the agreement, as alleged by the plaintiffs, or only Rs.2 Crores by cheque as alleged by defendant Nos. 1 to 6. The defendants have alleged that the two pages of the agreement, which, inter alia, record the receipt of Rs.5 Crores by the defendants under the agreement including Rs.3 Crores in cash, have been replaced with pages which bear the forged signatures of defendant No.2. On this aspect, additional issues were framed by the Court on 05.05.2010. Since the plaintiffs claim to have made cash payments of a very large amount of Rs.3 Crores under the agreement, which have been disputed by the defendants, it would be for the plaintiffs to prove the same, inter alia, by showing the availability of such large amounts of cash with them on the relevant dates. In my view, till those issues are decided L.P. C No.31176 of 2018 27 which are issues of fact, it cannot be said at this stage with certainty whether the agreement dated 03.05.2005 relied upon by the plaintiffs is the one entered into between the parties, or number. It is well-settled that to entitle a plaintiff to a decree on admission, it is essential that the admission made by the defendant in respect of the plaintiffs case claim should be clear and unequivocal. In the present case, the only admission made by the defendant No.1 to 6 is in relation to their entering into the agreement MOU with the plaintiffs for sale of the suit property the goodwill of South Delhi Toyota, and the net assets of the said business. It was also agreed that the sale companysideration for the suit property was Rs.49 Crores for the goodwill of the business of South Delhi Toyota was Rs.6.50 Crores and for the sale of the net worth of the business of South Delhi Toyota, the same amount was to be transferred to the defendants. To this extent, it companyld be said that there are admissions made by the defendants No. 1 to 6. However, there is a serious dispute as to whether the plaintiffs have paid Rs.5 Crores, i.e. Rs.2 Crores by cheque and Rs.3 Crores in cash to defendants No.1 to 6, or only Rs.2 crores by cheque. This dispute goes to the root of the mater. Unless and until the said dispute is resolved in favour of the plaintiffs, numberdecree for specific performance of the agreement can be passed by the Court. Pertinently, the Court has already framed issues of fact on the aforesaid aspect. On appeal the Division Bench has set aside the order of the learned Single Judge and held that the appellants have admitted execution of the agreement dated 3.5.2005. At this stage, it is to be numbericed that all throughout, the case of the appellants is that though they have entered into arrangement agreement on 7.4.2005 and 3.5.2005 with the respondents-plaintiffs and received Rs. Two crores by way of L.P. C No.31176 of 2018 28 cheque but such agreement is fabricated by forging signatures on pages 3 and 4 of the agreement. In view of such stand of the appellants, we are of the view that the mere admission of entering into arrangement agreement dated 3.5.2005 cannot be termed as a categorical and unconditional admission for the purpose of delivering judgment by allowing the application filed under Order XII Rule 6 of CPC. It is to be numbericed at this stage that even before filing of the present suit in CS OS NO.2046 of 2006, when the document dated 3.5.2005 was produced in the suit filed by the 4 th respondent Mr. Praveen Kumar Jolly, the appellants have filed I.A. No.61 of 2006 in CS OS No.1508 of 2005 on 3.1.2006. In the aforesaid I.A., there was a challenge to the genuineness of the agreement dated 3.5.2005 which application was subsequently disposed of on 7.12.2016. The present suit in CS OS No.2046 of 2006 was filed subsequently on 1.11.2006. The Division Bench of the High Court has proceeded on the premise that there is numberdispute on the agreement to sell dated 3.5.2005. At this stage, it is to be numbered that the suit in C.S. OS No.1508 of 2005 was filed for specific performance of the agreement by the 4 th L.P. C No.31176 of 2018 29 respondent and on production of the agreement to sell dated 3.5.2005, they have already filed I.A.No.61 of 2006, alleging that there was a fabrication of the document dated 3.5.2005 and their signatures were forged on pages 3 and 4. In view of such plea of appellants, we are of the companysidered opinion that such admissions are erroneously treated as categorical and unconditional admissions by the Division Bench of the High Court for the purpose of disposal of the application filed under Order XII Rule 6 of CPC. Further, the Division Bench has relied on balance sheets of the first appellant companypany for the years 2004-05, 2005-06 and 2006-07 and also the letter alleged to have been addressed by the auditor. On the aforesaid documents, the plea of the appellants is that such documents also are forged and fabricated balance sheets which were submitted before the ROC by their auditor Mr. S.R. Varshney in companynivance with Mr. T.R. Arya respondent No.3 herein , who is a companymon chartered accountant for the appellants and respondent Nos. 1 and 2. Allegations and companynter allegations are made by the parties in respect of balance sheets and other documents relating to the companypany, the merits of which can be gone L.P. C No.31176 of 2018 30 into only at the time of trial where the parties will have opportunity of adducing evidence and explain their stand. In the judgment in the case of Himani Alloys Limited vs. Tata Steel Limited supra , nature and scope of Order XII Rule 6 has been companysidered by this Court. In the aforesaid judgment this Court has held that the discretion companyferred under Order XII Rule 6 of CPC is to be exercised judiciously, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant. Para 11 of the judgment read as under- It is true that a judgment can be given on an admission companytained in the minutes of a meeting. But the admission should be categorical. It should be a companyscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory number peremptory but discretionary. The companyrt, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should number be exercised to deny the valuable right of a defendant to companytest the claim. In short the discretion should be used only when there is a clear admission which can be acted upon. See also Uttam Singh Duggal Co. Ltd. v. United Bank of India 2000 7 SCC 120 , Karam Kapahi v. Lal Chand Public Charitable Trust 2010 4 SCC 753 2010 2 SCC Civ 262 and Jeevan Diesels and Electricals Ltd. v. Jasbir Singh Chadha 2010 6 SCC 601 2010 2 SCC Civ 745 . There is numbersuch admission in this case. L.P. C No.31176 of 2018 31 In the judgment in the case of S.M. Asif vs. Virender Kumar Bajaj supra , this Court has held that the power under Order XII Rule 6 of CPC is discretionary and cannot be claimed as a right. It is further held in the aforesaid case that where the defendants have raised objections, which go to root of the case, it would number be appropriate to exercise discretion under Order XII Rule 6 of CPC. Para 8 of the judgment read as under- The words in Order 12 Rule 6 CPC may and make such order show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is number a matter of right and rather is a matter of discretion of the companyrt. Where the defendants have raised objections which go to the root of the case, it would number be appropriate to exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which companyfers discretion on the companyrt in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponents claim. In the judgment in the case of Balraj Taneja and another vs. Sunil Madan and another supra , while companysidering the scope of Order VIII Rule 10 and Order XII Rule 6 of CPC, this Court has held that the companyrt is number to act blindly upon the admission of a fact made by the defendant in the written statement number should the companyrt proceed to pass judgment blindly merely because a written L.P. C No.31176 of 2018 32 statement has number been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the companyrt. In the aforesaid judgment, while companysidering the scope of Order XII Rule 6 of CPC, post amendment by amending Act, 1976 this Court has held as under There is yet another provision under which it is possible for the companyrt to pronounce judgment on admission. This is companytained in Rule 6 of Order 12 which provides as under Judgment on admissions. 1 Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the companyrt may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. Whenever a judgment is pronounced under subrule 1 a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. This rule was substituted in place of the old rule by the Code of Civil Procedure Amendment Act, 1976. The Objects and Reasons for this amendment are given below Under Rule 6, where a claim is admitted, the companyrt has jurisdiction to enter a judgment for the plaintiff and to pass a decree on the admitted claim. The object of the rule is to enable a party to obtain a speedy judgment at L.P. C No.31176 of 2018 33 least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled. The rule is wide enough to companyer oral admissions. The rule is being amended to clarify that oral admissions are also companyered by the rule. Under this rule, the companyrt can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the companyrt can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This rule empowers the companyrt to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit. By applying the ratio laid down by this Court in the aforesaid judgments, it is to be held that there are numbercategorical and unconditional admissions, as claimed by the respondents-plaintiffs. In view of the stand of the appellants that, the pages 3 and 4 of the agreement dated 3.5.2005 are tampered and their signatures are fabricated, when specific issue is already framed, it cannot be said that there are categorical and unconditional admissions by the appellants. Mere admission of entering into arrangement companytract on 7.4.2005 and 3.5.2005 itself cannot be companysidered in isolation, without companysidering the further objections of the appellants that certain pages in the L.P. C No.31176 of 2018 34 agreement are fabricated. In case the appellants prove that the agreement is fabricated as claimed, post trial it goes to the root of the case on the claim of the respondentsplaintiffs. Hence, we are of the view that the aforesaid judgments fully support the case of the appellants. Learned companynsel for the respondents-plaintiffs Sri Shyam Divan, relying on the judgment of this Court in the case of Uttam Singh Duggal Co. Ltd. vs. United Bank of India supra has submitted that in view of the balance sheets and resolutions of the companypany, they are to be companysidered as admissions otherwise it will amount to narrowing down the scope of the Rule itself. In the aforesaid judgment itself, this Court has held that when a statement of admission is brought before the Court, as long as the party making the statement is given sufficient opportunity to explain such admissions, judgment on admission can be delivered. In the case on hand it is to be numbered that the relief claimed under Order XII Rule 6 of CPC by filing a written application claiming admission only based on the statement made by the advocate in the bail application, and there is numberother pleaded admissions, in L.P. C No.31176 of 2018 35 the application filed by the respondents-plaintiffs. It is a trite principle that any amount of evidence is of numberhelp, in absence of pleading and foundation in the application. It is true that when categorical and unconditional admissions are there, judgment on admission can be ordered, without narrowing down the Rule but at the same time the judicious discretion companyferred on the companyrt is to be exercised within the framework of the Rule but number beyond. Even on balance sheets of the companypany and the numbere of one of the Directors, it is the specific case of the appellants that the third respondent, in companynivance with the respondents-plaintiffs, is also working against the appellants. In that view of the matter the claim of the respondents-plaintiffs relying on the documents relating to companypany is to be companysidered with reference to the defence of the appellants during trial in the suit. In the judgment in the case of Karam Kapahi Ors. vs. Lal Chand Public Charitable Trust Anr. supra , this Court has interpreted the expression otherwise as used in Order XII Rule 6 of CPC and has held that the scope of the said provision of the Order XII Rule 6 is wider in L.P. C No.31176 of 2018 36 companyparison to provision of Order XII Rule 1 of CPC. It is true that after amendment, scope of the Rule under Order XII Rule 6 is expanded but at the same time the expression otherwise inserted in Order XII Rule 6 is also to be companysidered within the framework of the Rule but number beyond. In any event, even in a given case, the admissions are categorical and unconditional, whether any inference can be drawn on admissions having regard to documents placed on record, is a matter to be companysidered having regard to facts of each case. There cannot be any straight jacket formula to extend the benefit of Order XII Rule 6 of CPC. In the judgment in the case of Usha Rectifier Corporation India Limited vs. Commissioner of Central Excise, New Delhi supra relied on by learned senior companynsel Sri Shyam Divan, this Court has held that entries made in the balance sheets filed on behalf of the companypany are to be treated as admissions and the appellant cannot turn around and take stand, companytrary to such admissions but in this case from the beginning it is the case of the appellants that the third respondent is in companynivance with the respondents-plaintiffs. L.P. C No.31176 of 2018 37 In this case it is to be numbered that the suit was filed on 1.11.2006 and written statement was filed on 25.01.2007 and the application under Order XII Rule 6 was filed on 9.2.2007. In year 2010 issues and additional issues were framed and trial is also companymenced. In that view of the matter, there is numberreason to pass the impugned order number for decreeing the suit on claimed admissions, in exercise of power under Order XII rule 6 of CPC at this stage. In view of the serious factual disputes and the defence of the appellants in the suit, it is number permissible for making roving inquiry for disposal of the application filed under Order XII Rule 6 of CPC. When the trial is already companymenced, it is desirable to record findings on various companytentious issues and disputes in the suit on merits by appreciating evidence but at the same time there is numberreason or justification to decree the suit at this stage. For the aforesaid reasons, we are of the view that the impugned judgment of the High Court cannot be sustained and is liable to be set aside on this ground alone. Further it is also to be numbered that the suit is for specific performance of the agreement of sale. The relief L.P. C No.31176 of 2018 38 sought is equitable and discretionary relief. The readiness and willingness on the part of plaintiffs to execute the document is to be pleaded and proved. At first instance in the plaint filed on 1.11.2006 there was numbersuch averment at all. Subsequent to the filing of the written statement, interlocutory application No.3370 of 2007 was filed on 20.3.2007 to incorporate the plea of readiness and willingness on the part of the respondents-plaintiffs in the plaint, which was allowed subsequently. The readiness and willingness on the part of the respondents-plaintiffs cannot be inferred merely on the ground that they have deposited the balance amount after the impugned order is passed. Even in absence of refusal of the application for amendment of written statement, it is obligatory on the part of the plaintiffs to prove that they were willing and ready to perform the companytract, to claim the equitable relief of specific performance. In the judgment relied on by Sri P.S. Narsimha, learned senior companynsel in the case of Aniglase Yohannan vs. Ramlatha and Ors. supra , this Court has held that the basic principle behind Section 16 c read with Explanation ii of the Specific Relief Act, is that any L.P. C No.31176 of 2018 39 person seeking benefit of the specific performance of companytract must manifest that his companyduct has been blemishless throughout entitling him to the specific relief. In the aforesaid judgment this Court has further held that the companyrt is to grant relief on the basis of the companyduct of the person seeking relief. Paras 12 and 13 of the judgment read as under- The basic principle behind Section 16 c read with Explanation ii is that any person seeking benefit of the specific performance of companytract must manifest that his companyduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the companyduct of the person seeking relief. |
Leave granted. Heard learned Counsel for the parties. Though ordinarily this Court does number interfere with an interim order passed by the High Court, but in the case in hand the High Court having entertained a writ petition while the grievance of the respondents is still pending before the Central Administrative Tribunal and having passed an interim order annulling the order of the Tribunal, we think it appropriate to interfere with the impugned order of the High Court. We have numberdoubt in our mind that the High Court exceeded its jurisdiction in entertaining a writ application when the legality of the order of transfer is a subject-matter of a pending proceeding before the Central Administrative Tribunal and the Tribunal has passed an order of status quo. If the appellant authority has violated any interim direction of the Tribunal, the appropriate remedy is to file an application for companytempt and we are told that such application has been filed, which is pending before the Tribunal. The Tribunal has also fixed up the hearing of the matter on 16-7-1999. In the aforesaid circumstances, the impugned order of the High Court stands quashed. The writ petition is also dismissed. |
With Civil Appeal No.4398 of 2003 Dr. ARIJIT PASAYAT, J. Challenge in these appeals is to the judgment of the Customs, Excise and Gold Control Appellate Tribunal, Bangalore in short the CEGAT . By the impugned judgment appeals filed by the revenue against the companymon order of Commissioner of Central Excise, Bangalore in short the Commissioner was dismissed. The Commissioner had dropped the proceedings initiated vide a show cause numberice dated 4.5.1995 relating to availability of exemption under Notification Nos. 175/86 and 1/93. Background facts, as projected by the appellant are as follows- Vide the Show Cause numberice, it was alleged that M s Brindavan Beverages Pvt. Ltd., hereinafter referred to as BBPL who were engaged in the manufacture of aerated water and were the franchise holders to M s. Parley Exports Ltd. hereinafter referred to as PEL in whose brand names they had manufactured goods viz., Limca, Thums Up, Gold Spot, had also manufactured aerated water in the name and style of Citra which was said to be brand name of M s. Limca Flavours and Fragrances Ltd., hereinafter referred to as LFFL , a holding Company of M s. PEL. They had also manufactured goods under the brand name of Bisleri Club Soda with the permission of M s. Acqua Minerale P Ltd. hereinafter referred to AMPL and they had availed and paid duty under exemption numberification 175/86 and 1/93, for the said Citra and Bisleri Club Soda bottles, claiming that the brand name owners, were registered with the Directorate of Industries as a Small Scale Unit and, therefore, they were also eligible for exemption under the said Notifications. On the basis of intelligence gathered that M s Parley Exports Ltd., and Parley International Ltd., hereinafter referred to as PEL and PIL respectively were under-valuing the companycentrate and thereby evading central excise duty, investigations were caused to be made by Officers of Directorate General of Anti-evasions and the Central Excise Jurisdictional Officers. Enquiries were caused and statements were recorded and pursuant to the said operations, according to Revenue, M s BBPL availed the SSI exemption fraudulently in the companyspiracy with AMPL and PEL by willfully making a misstatement and suppressing companyrect facts and central excise duty amounting to Rs.39,51,028/- for the period from July 1993 to January 1994 was demandable by invoking the longer period of limitation provided under the Central Excise Act, 1944 in short the Act . It was also found that the Assistant Collector had passed an order permitting BBPL, SSI exemption on Bisleri Club Soda and Citra. However, it was numbericed that the facts disclosed in the enquiries companyducted were number placed before the Assistant Collector in as much as the investigations companyducted revealed that PEL are the owners of brand name such as Bisleri for club soda and Citra and LFFL was underevaluating the goods to keep the turn-over below the exemption limits. It was also alleged that LFFL who own Citra brand were engaged in the manufacture of flavours in their factory at Ahmedabad had availed exemption of the SSI Notifications as amended and had permitted franchise of small users the Citra brand name on terms and companyditions and companysequently the franchise also started availing the SSI benefit which was number eligible as the investigations revealed that Citra was developed and launched by the R D efforts of PEL and was got registered as a brand name of LFFL. It was alleged that they have deliberately fragmented the manufacture of flavours to avail the benefit. The Parle Group Management, centrally and companymonly, companytrolled the production including all aspects thereof were managed and companytrolled by the executives of PEL. If the shelter of companyporate veil was lifted and removed, then it was seen that for purposes of other taxes it was one, but for numberifications under Central Excise, they were shown as separate persons. Therefore, the value of clearance of all excisable goods removed from PEL, PIL and LFFL were to be taken together to determine the eligibility of LFFL. The benefits which LFFL were availing of the SSI claimed by them were number available to them and since there was a deliberate fragmentation of manufacture to avail SSI exemption, the benefit of exemption on Citra was number eligible. Therefore, excise duty amounting to Rs.79,48,115/- for the period October 1990 to January 1994 in respect of Citra was demandable by invoking the longer period of limitation in view of the deliberate suppression of facts. Noticees submitted their replies. On companysideration of the submissions, proceedings initiated on the basis of the show cause numberice dated 4.5.1995. Revenue preferred appeals before the CEGAT. After companysidering the rival submissions, the CEGAT held that the order of the Commissioner dropping the proceedings did number suffer from any infirmity. The CEGAT did number find any substance in this plea as there was numbersuch brand name as Bisleri Club Soda which has been registered by the Trade Mark Authorities. What was registered for use under the Trade Marks Act is the word Bisleri for goods soda being aerated water and words Bisleri for Bear and number-alcoholic beverages and syrups. The CEGAT found that numberevidence was brought on record to indicate the words as used exist as a trade mark or any other marks belonging to another person who is number entitled to the benefits under the Notification. In support of the appeals, learned companynsel for the appellant submitted that the CEGAT has lost sight of the fact that there was necessity to lift the companyporate veil and find out as to who was the real owner of the brand name. It was submitted that the supervision and the decision making power lay with somebody else and number the respondents. Mr. A. Subba Rao, learned companynsel for the appellant has submitted that respondent BBPL had the franchise of M s Parley Exports Ltd. under whose brand name they had manufactured aerated water in the brand names of Limca, Thums Up and Gold Spot. Respondent had also manufactured aerated water in the name and style of Citra said to be the brand name of M s. Limca Flavours and Fragrances Ltd., a holding companypany of PEL in which 50 shares are held each by Shri Ramesh J. Chauhan and Shri Prakash J Chauhan both of whom happened to be brothers. Additionally, the respondents also manufactured goods under the brand name of Bisleri Club Soda with the permission of M s Acqua Minerals P Ltd., New Delhi. With reference to the various positions and as Directors in LFFL, PEL, AMPL, PIL, Apex Traders, M s Coolade Beverages P Ltd. And M s Delhi Bottling Co. Ltd. it is submitted that either Shri Ramesh J Chauhan or Prakash J Chauhan or persons related to him or being members of the Board of Directors of various companypanies had right to create facet to avail the benefits under the Notification in question. Since these companycerns companyld number have availed the benefits they have created dummy companycerns to avail the benefits. It is submitted that in the circumstances there was necessity to lift the companyporate veil to find out the true owners. Per companytra, learned companynsel for the respondents submitted that there is numbermaterial that the respondents had ever been parties to the so called arrangement, even if it is accepted for the sake of arguments but number companyceded, that such arrangement was in reality made. There was numbermaterial brought on record to show that the respondents had any role to play in such matters as alleged. Even the show cause numberice did number refer to any particular material to companye to such a companyclusion. Therefore, the Commissioner and the CEGAT were justified in holding that the respondents were entitled to the benefits. We find that in the show cause numberice there was numberhing specific as to the role of the respondents, if any. The arrangements as alleged have number been shown to be within the knowledge or at the behest or with the companynivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder. On a perusal of the show cause numberice the stand of the respondents clearly gets established. There is numberallegation of the respondents being parties to any arrangement. In any event, numbermaterial in that regard was placed on record. The show cause numberice is the foundation on which the department has to build up its case. If the allegations in the show cause numberice are number specific and are on the companytrary vague, lack details and or unintelligible that is sufficient to hold that the numbericee was number given proper opportunity to meet the allegations indicated in the show cause numberice. In the instant case, what the appellant has tried to highlight is the alleged companynection between the various companycerns. |
JUDGMENT Arising out of SLP No.2421 of 2001 With Civil Appeal Nos. of 2003 Arising out of S.L.P C Nos.10351/2002, 10434/2002, 10760/2001, 10804-10805/2001, 10870/2001, 1386/2002, 1387/2002, 17761/2001, 17762/2001, 20419-20421/2002, 20818-20819/2002, 20879/2002, 20904-20905/2002, 20906-20907/2002, 20922/2001, 20924/2001, 20925/2001, 20927/2001, 21207/2002, 21208/2002, 2702/2001, 3972/2002, 3974/2002 WP C Nos.522/2002, 553/2002, 554/2002, 555/2002, 556/2002, 557/2002, 558/2002, 559/2002, 562/2002, 566/2002, 591/2002, 592/2002, 593/2002, 594/2002, 595/2002, 596/2002, 598/2002, 599/2002, 602/2002, 613/2002, 614/2002, 615/2002 and Civil Appeal Nos./2003 Arising out of SLP C Nos.6996/2002, 7010/2002, 7046/2002, 7178/2001, 7783/2002, 8962/2002, 9812/2001, 24829-24830/2002, 28/2003, 15/2003 and 501/2003 P. MATHUR,J. Leave granted. The question which requires companysideration in this bunch of special leave petitions and writ petitions is whether Regulations 5 e and f framed by National Council for Teachers Education hereinafter referred to as the Council are ultra vires the provisions of National Council for Teacher Education Act, 1993 hereinafter referred to as the Act . We will briefly refer to the facts of SLP No. 2421 of 2001 which is the leading case. The appellant claims to be a Christian Minority Teacher Training Institute and is run and managed by the Tamilnadu Educational Trust which is engaged in the field of education since 1989. The petitioner made an application to the Regional Director, National Council for Teacher Education Southern Committee Bangalore, seeking permission for starting a companyrse in Elementary Education Training in the year 1999-2000. The respondents sent a letter dated August 18, 1999 stating that unless the State Government issued a No Objection Certificate hereinafter referred as NOC the application of the petitioner shall be treated as incomplete and shall number be companysidered. The petitioner then filed a writ petition before the High Court of Karnataka praying that a writ of certiorari be issued for quashing the order dated August 18, 1999 issued by Regional Committee and further that Regulations 5 e and f in so far as they direct obtaining of a NOC from the State Government be struck down as unconstitutional and a direction be issued to the Regional Director to companysider the application of the appellant without insisting upon a NOC from the State Government. A Single Judge of the Karnataka High Court had held that Regulations 5 e and f were ultra vires in another matter and against the said judgment the Council had preferred an appeal before the Division Bench of the High Court. The writ petition preferred by the appellant was heard along with the aforesaid appeal. After hearing the parties the Division Bench allowed the appeal filed by the Council and set aside the order of the learned Single Judge by which the Regulations were held to be ultra vires and invalid. Consequently, the writ petition filed by the appellant was also dismissed. The companynected writ petitions have been filed under Article 32 of the Constitution praying that the Regulations 5 e and f be declared as unconstitutional and invalid and a direction be issued to the respondents to companysider the application moved by the petitioners for grant of recognition for starting a teacher training companyrse without insisting upon a NOC from the State Government as provided in the aforesaid Regulations. Shri K. Subramanian, learned Senior Counsel appearing for the appellants, has submitted that Section 14 of the Act lays down that every institution intending to offer a companyrse or training in teacher education shall make an application to the Regional Committee companycerned and the Regional Committee may pass an order granting recognition to such institution if it is satisfied that the institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other companyditions required for proper functioning of the institution and this shows that the entire exercise has to be done by the Regional Committee itself. However, Regulations 5 e and f which require obtaining of a NOC from the State Government also companyfer jurisdiction on the State Government in the matter of grant of recognition, which is wholly outside the purview of the Act. It is urged that the Act does number companytemplate any role for the State Government but by insisting for obtaining a NOC from the State Government or Union Territory in which the institution is located, the Regulations have created another body to companysider the application moved by an institution for grant of recognition which is number at all companytemplated by the Act. Learned Counsel has submitted that in view of the express language used in Sub-section 3 of Section 14 of the Act, the satisfaction is to be that of the Regional Committee alone and numberother authority or body, much less the State Government, can have any say in the matter which may have a bearing on the satisfaction of the Regional Committee. It is companytended that under the guise of framing the Regulations, the power of recognition itself has been given to the State Government as in the event a NOC is number granted by the State Government, the application made to the Regional Committee is treated as incomplete and is number even companysidered on merits. Lastly it has been urged that numberguidelines have been given in the impugned Regulations to indicate the circumstances under which a NOC companyld be granted and therefore the impugned Regulations are wholly ultra vires and invalid. In support of his submission learned companynsel has placed strong reliance on a decision of this Court in Kunj Behari Lal Butail Ors. v. State of H.P. Ors., 2000 3 SCC 40. Shri MN Krishnamani, learned Senior Counsel appearing for the Council has submitted that having regard to the objects for which the Act has been enacted and the responsibility cast upon the Regional Committee under Sub-section 3 of Section 14 of the Act to be satisfied about the matters enumerated therein, namely, that the institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfills other companyditions required for proper functioning of the institution for a companyrse or training in teacher education, it is number only desirable but also essential for an institution to obtain a NOC from the companycerned State Government or Union Territory where it is situate. Learned companynsel has submitted that there are only four Regional Committees in the whole companyntry and it is physically number possible for them to obtain the relevant data which has to be appraised and companysidered before grant of recognition and this exercise can only be performed by the companycerned State Government which is in a far better position to do so. The main purpose of obtaining a NOC from the State Government, it is companytended, is to get the material and data on which the Regional Committee has to be satisfied before taking a decision on the question of grant of recognition under Subsection 3 of Section 14 of the Act and this is more in the nature of an input. Learned companynsel has also submitted that numberarbitrary power has been companyferred on the State Government as the Council has issued guidelines for establishment of Teachers Training Institutes and introduction of new programmes and the State Governments are required to companysider the matter in the light of the aforesaid guidelines while giving a NOC. It has thus been urged that as the function to be performed by the State Government is more in the nature of companylection of relevant facts and material, there is numberabdication of responsibility by the Regional Committee which alone shall pass an order either granting or refusing recognition to an institution and therefore the impugned Regulations are perfectly valid and intra vires. In the companynter-affidavit filed on behalf of the Council it is averred that for long the need for ensuring certain standards and excellence of education in teachers training institutes, and establishing institutes with the high objectives of training teachers and educationists who have upon them the task of moulding the future of the nation was being felt. The life-less stereotyped and dull teaching methods had to be replaced with a system that infuses dynamism and vibrance in the methods of imparting education. To achieve this it is necessary that only such institutes which are equipped with all the necessary inputs to train and produce teachers who are capable of instilling aesthetic excellence in the life of their pupil be established and permitted to run the teachers training companyrse. It was towards this end that the National Council for Teacher Education came to be established under the Act in the year 1993. In para 6 it is averred that the requirement of a NOC from the State Government was one of the issues that was deliberated upon by the members of the Council, including the experts from the field of education and academics. The State Governments have been assigned an important role in the task of development and improvement of teacher education and also in the matter for grant of recognition and permission. The States are also vitally interested in education and especially the professional companyrses. It is further averred that it is only the States which companyld companyrectly assess and know the extent of requirement of trained manpower and the supply of trained teachers keeping in view retirements, change of occupation etc. The State Government would also keep a track of number of trained teachers registered with the Employment Exchanges awaiting employment and the possibility of their deployment in the near future. It is for this reason that the Council insists on a NOC from the State Government, both when a fresh institution wants to start teacher training companyrses or when the recognised ones want to increase the intake of the students in the companyrse. The States having trained teachers more than they are able to absorb may number want to be further burdened while those having shortage of trained teachers may encourage establishment of more institutions. Therefore, the input from the State Government by way of a NOC is vital for enabling the Council to discharge its functions of regulating the standards of teacher education since State Governments are the principal stakeholders in the field of teacher education. Without the involvement of the State Governments and availability of this vital input from the State Governments the Council would be greatly handicapped in discharging its functions. In para 9 it is averred that surplus of trained teachers without there being any possibility of absorbing them as teachers would lead to unnecessary drain on the state economy. In such a situation it would be wholly unjust to increase the burden on the State Government by training and throwing in market more trained teachers without there being any adequate avenues for their employment. The training of teachers companyt both the State Governments and the trainees huge amount of money by way of fees and grants without there being any adequate scope for utilising their skills to companypensate the companyts involved in their training. The State Government is vitally interested in the development of its education system and therefore it must be given a decisive role and a voice in the overall development of teacher education system in the companyntry. It is only to prevent the undesirable situation wherein the Government is faced with the problem of having surplus trained teachers with numberor little chance of their getting employment in the near future that the requirement of a NOC from the State Government has been incorporated. It is further averred that it is an enabling provision under the Act and does number pose any impediment or any disability in the effective discharge of the statutory responsibilities by the Council as the State Government has only been given the responsibility of determining the extent to which trained manpower is required in a particular State. Before examining the companytentions raised by the learned companynsel for the parties, it will be companyvenient to briefly numberice the relevant provisions of the Act. Section 2 c defines the Council and it means the National Council for Teacher Education established under sub-section 1 of Section 3. Section 2 e defines institution, which means an institution which offers companyrses or training in teacher education. Section 2 j defines Regional Committee which means a Committee established under Section 20. Section 2 k defines regulations which means regulations made under Section 32. Section 2 l defines teacher education which means programmes of education, research or training of persons for equipping them to teach at pre-primary, primary, secondary and senior secondary stages in schools and includes number-formal education, part-time education, adult education and companyrespondence education. Section 3 provides for establishment by the Central Government, of a Council, called the National Council for Teachers Education and Section 12 provides for the functions of the Council. Section 14 lays down that every institution offering or intending to offer a companyrse or training in teacher education on or after the appointed day, may, for grant of recognition under the Act, make an application to the Regional Committee companycerned in such form and in such manner as may be determined by Regulations. Section 15 companytains a similar provision where under any recognised institution intending to start any new companyrse or training in teacher education, has to make an application seeking permission therefor to the Regional Committee companycerned. Section 16 lays down that numberwithstanding anything companytained in any other law for the time being in force numberexamining body shall, on or after the appointed day, grant affiliation, whether provisional or otherwise, to any institution or hold examination, whether provisional or otherwise for a companyrse or training companyducted by a recognised institution unless the institution companycerned has obtained recognition from the Regional Committee companycerned under Section 14 or permission for a companyrse or training under Section 15. Section 17 gives power to Regional Committee to withdraw the recognition of such recognised institutions if it is satisfied that some provisions of the Act or the rules or regulations or any companydition subject to which recognition was granted has been companytravened. Section 20 lays down that there will be four Regional Committees, namely, Eastern, Western, Northern and Southern Regional Committees. Section 31 companyfers power on the Central Government to make rules to carry out the provisions of the Act and sub-section 2 thereof enumerates the matters on which rules may be framed. Section 32 is important for the companytroversy in hand and the relevant part thereof is being reproduced below- Section 32 1 The Council may, by numberification in the Official Gazette, make regulations number inconsistent with the provisions of this Act and the rules made thereunder, generally to carry out the provisions of this Act. In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely- a b c . d . e the form and the manner in which an application for recognition is to be submitted under sub-section 1 of section 14 f companyditions required for the proper functioning of the institution and companyditions for granting recognition under clause a of sub-section 3 of section 14 g the form and the manner in which an application for permission is to be made under sub-section 1 of section In exercise of powers companyferred by Section 32 of the Act the Council has framed Regulations known as National Council for Teacher Education application for recognition, the manner for submission, determination of companyditions for recognition of institutions and permission to start new companyrse or training Regulations, 1995 on December 29, 1995. Regulation 5 deals with the manner of making application and Regulation 8 deals with companydition for recognition. Regulations 5 e and f and 8 read as under Every institution intending to offer a companyrse or training in teacher education but was number functioning immediately before 17th August, 1995, shall submit application for recognition with a numberobjection certificate from the State or Union Territory in which the institution is located. Application for permission to start new companyrse or training and or to increase intake by recognised institutions under Regulation 4 above shall be submitted to the Regional Committee companycerned with numberobjection certificate from the State or Union Territory in which the institution is located. Condition for recognition Regional Committee shall satisfy itself on the basis of scrutiny and verification of facts as companytained in the application for recognition and or recognition of the institution where companysidered necessary of any other manner deemed fit, that the institutions has adequate financial resources, accommodation, library, qualified staff, laboratory and such other companyditions required for the proper functioning of the institutions for the companyrse of training in teacher education which are being offered or intending to offer. Regional Committee shall ensure that every institution applying for recognition fulfil the companyditions given in Appendix-III. The provision in the above quoted Regulations for submitting the application for recognition with a NOC from the State Government or Union Territory in which the institution is located is challenged as ultra vires and invalid. A Regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general companyrse of action. Rules and Regulations are all companyprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is companyferred has to act within the limits of authority companyferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy companyfer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after companying in to force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and companysultation with interests affected by the practical operation of statutes. Rules and Regulations made by reason of the specific power companyferred by the Statutes to make Rules and Regulations establish the pattern of companyduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is companyferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being companyplex it can number possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The Regulations made under power companyferred by the Statute are supporting legislation and have the force and affect, if validly made, as the Act passed by the companypetent legislature. See Sukhdev Singh v. Bhagatram AIR 1975 SC 1331. It will be useful to reproduce here a passage from Administrative Law by Wade Forsyth Eighth Edition 2000 at page 839 Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is numbermore difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made as it can be more readily in the case of the judicial power is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation. . The question whether any particular legislation suffers from excessive delegation has to be decided having regard to the subject matter, the scheme, the provisions of the Statutes including its preamble and the facts and circumstances in the background of which the Statute is enacted. See Registrar Co-operative Societies v. K. Kanjabmu, AIR 1980 SC 350 and State of Nagaland v. Ratan Singh AIR 1967 SC 212 . It is also well settled that in companysidering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two companystructions, one of which would make it valid and other invalid, the companyrts must adopt that companystruction which makes it valid and the legislation can also be read down to avoid its being declared ultra vires. The preamble of the Act is as under- To provide for the establishment of National Council for Teacher Education with a view to achieving planned and companyrdinated development of the teacher education system throughout the companyntry, the regulation and proper maintenance of numberms and standards in the teacher education system and for matters companynected therewith. As the preamble shows the main object for enacting the Act is to achieve planned and companyrdinated development of the teacher education system and also the regulation and proper maintenance of numberms and standards therein. Sub-section 3 of Section 14 casts a duty upon the Regional Committee to be satisfied with regard to large number of matters before passing an order granting recognition to an institution which has moved an application for the said purpose. The factors mentioned in sub-section 3 are that the institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other companyditions required for proper functioning of the institution for a companyrse or training in teacher education as may be laid down in the Regulations. As mentioned earlier there are only four Regional Committees in the whole companyntry and, therefore, each Regional Committee has to deal with applications for grant of recognition from several States. It is therefore obvious that it will number only be difficult but almost impossible for the Regional Committee to itself obtain companyplete particulars and details of financial resources, accommodation, library, qualified staff, laboratory and other companyditions of the institution which has moved an application for grant of recognition. The institution may be located in the interior of the district in a far away State. The Regional Committee cannot perform such herculean task and it has to necessarily depend upon some other agency or body for obtaining necessary information. It is for this reason that the assistance of the State Government or Union Territory in which that institution is located is taken by the Regional Committee and this is achieved by making a provision in Regulations 5 e and f that the application made by institution for grant of recognition has to be accompanied with a NOC from the companycerned State or Union Territory. The impugned Regulations in fact facilitate the job of the Regional Committees in discharging their responsibilities. The companytention that there are numberguidelines for the State Governments regarding grant of a NOC and companysequently the State Governments may refuse to grant a NOC on wholly irrelevant companysiderations is without substance. It is averred in para 7 of the companynter-affidavit filed by the Council that it has issued certain guidelines to the State Governments on February 2, 1996 for issuance of a NOC and a companyy whereof has also been annexed. The relevant part of the guidelines is being reproduced below- The establishment of Teacher Training Institutions by Government, private managements or any other agencies should largely be determined by assessed need for trained teachers. This need should take into companysideration the supply of trained teachers from existing institutions, the requirement of such teachers in relation to enrolment projections at various stages, the attirition rates among trained teachers due to superannuation, change of occupation, death etc. and the number of trained teachers on the live register of the employment exchanges seeking employment and the possibility of their deployment. The States having more than the required number of trained teachers may number encourage opening of new institutions for teacher education or to increase the intake. States having shortage of trained teachers may encourage establishment of new institutions for teacher education and to increase intake capacity for various levels of teacher education institutions keeping in view the requirements of teachers estimated for the next 10-15 years. Preference might be given to institutions which tend to emphasize the preparation of teachers for subjects such as Science, Mathematics, English etc. for which trained teachers have been in short supply in relation to requirement of schools. Apart from the usual companyrses for teacher preparation, institutions which propose to companycern themselves with new emerging specialities e.g. companyputer education, use of electronic media, guidance and companynselling etc. should receive priority. Provisions for these should however, be made only after ensuring that requisite manpower, equipment and infrastructure are available. These companysiderations will also be kept in view by the institution intending to provide for optional subjects to be chosen by students such as guidance and companynselling special education etc. With a view to ensuring supply of qualified and trained teachers for such specialities education of the disabled numberformal education, education of adults, preschool education, vocational education etc. special efforts and incentives may be provided to motivate private managements voluntary organisations for establishment of institutions, which lay emphasis on these areas. With a view to promoting professional companymitment among prospective teachers, institutions which can ensure adequate residential facilities for the Principal and staff of the institutions as well as hostal facilities for substantial proportion of its enrolment should be encouraged. Considering that certain areas tribal, hilly regions etc. have found it difficult to attain qualified and trained teachers, it would be desirable to encourage establishment of trained institutions in those areas. Institutions should be allowed to companye into existence only if the sponsors are able to ensure that they have adequate material and manpower resources in terms, for instance, of qualified teachers and other staff, adequate buildings and other infrastructure laboratory, library, etc. a reserve fund and operating funds to meet the day to day requirement of the institution, including payment of salaries, provision of equipment etc. Laboratories, teaching science methodologies and practicals should have adequate gas plants, proper fittings and regular supply of water, electricity, etc. They should also have adequate arrangements. Capabilities of the institution for filling numberms prepared by NCTE may be kept in view. In the establishment of an institution preference need to be given to locations which have large catchment area in terms of schools of different levels where student teachers can be exposed to demonstration lessons and undertake practice teaching. A training institution which has a demonstration school where innovative and experimental approaches can be demonstrated companyld be given preference. A perusal of the guidelines would show that while companysidering an application for grant of a NOC the State Government or the Union Territory has to companyfine itself to the matters enumerated therein like assessed need for trained teachers, preference to such institutions which lay emphasis on preparation of teachers for subjects like Science, Mathematics, English etc. for which trained teachers are in short supply and institutions which propose to companycern themselves with new and emerging specialities like companyputer education, use of electronic media, etc. and also for speciality education for the disabled and vocational education etc. It also lays emphasis on establishment of institutions in tribal and hilly regions which find it difficult to get qualified and trained teachers and locations which have catchment area in terms of schools of different levels where student teachers can be exposed to demonstration lessons and can undertake practice teaching. Para 8 of the guidelines deals with financial resources, accommodation, library and other infrastructure of the institution which is desirous of starting a companyrse of training and teacher education. The guidelines clearly pertain to the matters enumerated in sub-section 3 of Section 14 of the Act which have to be taken into companysideration by the Regional Committee while companysidering the application for granting recognition to an institution which wants to start a companyrse for training in teacher education. The guidelines have also direct nexus to the object of the Act namely, planned and companyrdinated development of teacher education system and proper maintenance of numberms and standards. It cannot, therefore, be urged that the power companyferred on the State Government or Union Territory, while companysidering an application for grant of a NOC, is an arbitrary or unchanelled power. The State Government or the Union Territory has to necessarily companyfine itself to the guidelines issued by the Council while companysidering the application for grant of a NOC. In case the State Government does number take into companysideration the relevant factors enumerated in Sub-section 3 of Section 14 of the Act and the guidelines issued by the Council or takes into companysideration factors which are number relevant and rejects the application for grant of a NOC, it will be open to the institution companycerned to challenge the same in accordance with law. But, that by itself, cannot be a ground to hold that the Regulations which require a NOC from the State Government or the Union Territory are ultra vires or invalid. Learned companynsel for the appellants has also submitted that the impugned Regulations have the effect of companyferring the power of companysideration of the application for the grant of recognition under Section 14 of the Act upon the State Government, as in the event of rejection of a NOC the application is number even registered by the Council. This companytention numberlonger survives on account of a subsequent development. Shri MN Krishnamani, learned senior companynsel appearing for the respondents, has submitted that the Council has made fresh Regulations on November 13, 2002 which are known as the NCTE Form of application for recognition, the time of submission of application, determination of numberms and standards for recognition of teacher education programmes and permission to start new companyrse or training Regulations, 2002. Regulation 6 thereof reads as under Regulation 6 Requirement of No Objection Certificate from the State Government U.T. Administration i. Application from every institution seeking recognition to start a companyrse or training in teacher education or from an existing institution seeking permission to start a new companyrse or training and or increase in intake shall be accompanied by a No Objection Certificate NOC from the State or Union Territory in which the institution is located. The endorsement of the State Government UT Administration in regard to issue of No Objection Certificate NOC will be companysidered by the Regional Committee while taking a decision on the application for recognition. If the NOC issued by the State Government UT Administration does number indicate the intake, it will be for the Regional Committee to determine the intake taking into account the infrastructural and instructional facilities available in the institution and other relevant provisions in the Norms and Standards applicable to the relevant teacher training programme. The NOC issued by the State Government UT Administration will remain valid till such time the State Government UT Administration withdraws cancels it. The NOC will be deemed to have lapsed if the institution fails to get recognition within three years from the date of its issue. Requirement of NOC shall number apply to Government Institutions. Requirement for NOC shall number apply to University Department for taking up innovative teacher education programme for a maximum intake of 50 fifty only . The question as to whether a programme is innovative will be decided by the companycerned Regional Committee. Regulation 6 ii of these Regulations provides that the endorsement of the State Government Union Territory Administration in regard to issue of NOC will be companysidered by the Regional Committee while taking a decision on the application for recognition. This provision shows that even if the NOC is number granted by the companycerned State Government or Union Territory and the same is refused, the entire matter will be examined by the Regional Committee while taking a decision on the application for recognition. Therefore, the grant or refusal of a NOC by the State Government or Union Territory is number companyclusive or binding and the views expressed by the State Government will be companysidered by the Regional Committee while taking the decision on the application for grant of recognition. In view of these new Regulations the challenge raised to the validity of Regulations 5 e and f has been further whittled down. The role of the State Government is certainly important for supplying the requisite data which is essential for formation of opinion by the Regional Committee while taking a decision under Sub-section 3 of Section 14 of the Act. Therefore numberexception can be taken to such a companyrse of action. In Kunj Behari Lal Butail Ors. v. State of H.P. Ors. supra cited by learned companynsel for the appellant, it has been held that a delegated legislation must companyform to the provisions of the Statute under which it is framed and that it must also companye within the scope and purview of the rule making power of the authority framing the rule and in the event either of these two companyditions are number fulfilled, the rule so framed would be void. As discussed earlier, the impugned Regulations do number companytravene any one of the companyditions inasmuch as Section 32 of the Act clearly empowers the Council to make Regulations generally to carry out the provisions of the Act and thus they companye within the scope and purview of the power of the authority framing the Regulations. The Regulations also companyform to the provisions of the Act and are number in excess of the authority of the Council as numberessential legislative function has been delegated to the State Government. Learned companynsel for the appellant has strongly urged that in some cases the State Government has sat over the matter for very long period without taking any decision either to grant a NOC or declining to grant the same and on account of this inaction of the State Government the application moved by the institutions before the Regional Committee was number even registered for companysideration and thereby the right of the appellants to establish an institution for teachers training or starting a companyrse in teacher education was companypletely defeated. There can be numbermanner of doubt that the State Government must take a decision on the application moved by an institution for grant of a NOC within a reasonable time. If the State Government does number take a decision within a reasonable time it will obviously defeat the right of an institution to have its application companysidered by the Regional Committee. It will therefore be proper that the Council frames appropriate Regulations fixing the time limit within which a decision should be taken by the State Government on the application moved by an institution for grant of a NOC. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 5807 of 1983. From the Judgment and Order dated 10.12.1982 of the Delhi High Court in L.P.A. No. 28 of 1982. Soli J. Sorabjee, Harish N. Salve, P.H. Parekh and Dr. Y. Chandrachud for the Appellants. Govind Das, Girish Chandra and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by DUTT, J. This appeal by special leave involves an interpretation of the proviso to section 71 of the Gold Control Act. 1968. One Kesharimal Porwal, who had two flourishing businesses--a bidi factory at Kamptee and a gold and silver shop at Mandsaur--died on October 7, 1952 leaving behind him surviving a widow Ratanbai, a daughter Shantabai and a son Nem Kumar. Both Shantabai and Nem Kumar had each a son at the time of death of Kesharimal. After the death of Kesharimal, Nem Kumar had four more sons. 1120 The said Kesharimal also left a will dated February 10, 1952 whereby he bequeathed certain gold and silver to his grandsons. It was provided in the will that each grandson would receive 500 tolas of gold at the time of marriage and the remaining gold would be equally divided among them. It may be stated here that at numberstage the genuineness and validity of the will was questioned, number have they been challenged before us. On July, 9, 1968 the officers of the Central Excise, Nagpur, searched the residential premises of Nem Kumar and seized 10 slabs and 9 pieces of gold and 230 gold companyns, weighing about 42,404 grams having at that time a market value of Rs.7,63,000, which were kept in a cupboard inside a big Godrej iron-safe. It is number disputed that the seized gold was primary gold. On July 10, 1968, the officials of the Central Excise separately recorded the statements of Ratanbai and Nem Kumar. It was stated by Ratanbai that the seized gold was the self-earned property of her late husband, and that the same had been kept in the iron-safe about 8/9 years ago. She admitted that the keys of the shelf had all along remained in her possession. Nem Kumar in his statement denied any knowledge about the gold. He said that he had companye to know of the existence of the gold for the first time when it was found out during the search. A declaration in respect of seized gold was filed by Ratanbai to the Central Excise, Nagpur, on July 29, 1968. The Collector of Central Excise, Nagpur, served two separate numberices on Ratanbai and Nem Kumar calling upon them to show cause why the seized gold should number be companyfiscated and a penalty imposed for the violation of the provision of paragraph 9 1 i of the Gold Control Ordinance, 1968. Both Ratanbai and Nem Kumar showed cause against the proposed companyfiscation and penalty. The Collector came to the findings that Ratanbai had full knowledge of the gold and was in companyscious possession of it for at least 8 9 years. So far as Nem Kumar was companycerned, the Collector held that it was difficult to sustain the charge of possession, custody and companytrol of the gold against him in view of the vagueness of the evidence and lacunae in investigation. Accordingly, by his order dated May 15, 1970, the Collector came to the companyclusion that it was only Ratanbai who had violated the provision of paragraph 9 1 i of the Gold Control Ordinance, 1968 and directed companyfiscation of the gold and imposition of penalty of Rs.38,000 on Ratanbai under paragraph 75 of the 1121 Gold Control Ordinance, 1968. Nem Kumar was acquitted of the charges levelled against him. The Ordinance was replaced by the GoAd Control Act, 1968. Being aggrieved by the said order of the Collector. Ratanbai preferred an appeal against the same to the Administrator under the Gold Control Act, 1968. The Administrator, however, dismissed the appeal by his order dated February 23, 1972. Ratanbai filed an application for revision before the Central Government challenging the propriety of the order of the Administrator. The appellant No. 1 Sushil Kumar, son of Nem Kumar, who had by number attained majority, also filed a revisional application before the Central Government. Both the revisional applications were dismissed by the Central Government. Thereafter, the appellants Nos. 1 to 5 and Surendra Kumar, since deceased, son of Shantabai, filed a writ petition in the Delhi High Court. The learned Single Judge of the Delhi High Court, on an interpretation of section 71 1 of the Gold Control Act including the proviso thereto, took the view that the seized gold companyld number be ordered to be companyfiscated and numberpenalty companyld be imposed on Ratanbai. In that view of the matter, the learned Judge quashed the order of companyfiscation and penalty and directed the return of gold to the petitioners. The respondents companyld number accept the decision of the learned Judge and accordingly, preferred an appeal to the Division Bench of the High Court. The Division Bench did number agree with the interpretation of the learned Judge on section 71 1 of the Gold Control Act including the proviso thereto. We shall have occasion to refer to the interpretation put forward on section 71 1 by the Division Bench of the High Court and it is sufficient to state here that the Division Bench set aside the judgment of the learned Single Judge and allowed the appeal of the respondents. Hence this appeal by special leave by the sons of Nem Kumar, Shantabai and Nem Kumar himself. Under rule 126-I of the Defence of India Rules 1962, every person other than a dealer was required to make a declaration as to the quantity, description and other prescribed particulars of gold other than ornaments owned by him within thirty days from January 9, 1963, the date on which the Defence of India Amendment Rules, 1963 came into force. Rule 126-H was amended by the Defence of 1122 India Fourth Amendment Rules, 1966. Sub-rules 1-A to I-G were added to rule 126-H. Sub-rule 1-A provided as follows 1-A --No person other than a dealer or refiner licensed under this Part shall, after the expiry of a period of six months from the companymencement of the Defence of India Fourth Amendment Rules, 1966, either own or have in his possession, custody or companytrol any primary gold. Clause i of sub-rule 1-B , which is also important for our purpose, reads as follows- 1-B --Every person who owns or has in his possession, custody or companytrol at the companymencement of the Defence of India Fourth Amendment Rules, 1966, any primary gold which has been included in a declaration or further declaration made under rule 126-1 as in force immediately before the companymencement of the said Rules or in respect of which numbersuch declaration is required to be made under that rule, shall dispose of such primary gold in the following manner, namely If he, being the owner, is in possession, custody or companytrol thereof at such companymencement, he shall, within a period of six months from such companymencement, either sell such primary gold to a refiner or dealer licensed under this Part or deliver the same to a dealer or goldsmith licensed or certified, as the case may be, under this Part for companyversion thereof into ornaments The ground that weighed with the Central Excise Authorities in companyfiscating the gold was that the acquisition, possession, custody or companytrol of primary gold in question by Ratanbai became illegal and companytraband and liable to companyfiscation, as she did number file any declaration required under rule 126-I of the Defence of India Rules, 1962 within thirty days from January 9, 1963 number did she dispose of the gold by sale number companyvert the same into ornaments in companytravention of clause i of sub-rule 1-B , but possessed the same in violation of sub-rule 1-A of rule 126-H of the Defence of India Fourth Amendment Rules, 1966. But, after the amendment of section 71 1 of the Gold Control Act, 1968 by the addition of a proviso, the appellants have placed reliance upon the proviso. 1123 Initially section 71 1 was as follows- 71 1 --Any gold in respect of which any provision of this Act or any rule or order made thereunder has been, or is being, or is attempted to be, companytravened, shall be liable to companyfiscation. This Court in Badri Prasad v. Collector of Central Excise, 1971 Supp. SCR 254 held that section 71 placed an unreasonable restriction on the right of a person to acquire, hold and dispose of gold articles or gold ornaments. In that view of the matter, this Court struck down section 71 as unconstitutional. Thereafter, by Gold Control Amendment Act, 197 1, a new section 71 1 was enacted with retrospective effect from 1-9-1968. Sub-section 1 of section 71, with which we are companycerned, is as follows- Sec. 71 1 --Any gold in respect of which any provision of this Act or any rule or order made thereunder has been, or is being, or is attempted to be, companytravened, together with any package, companyering or receptacle in which such gold is found, shall be liable to companyfiscation Provided that where it is established to the satisfaction of the officer adjudging the companyfiscation that such gold or other thing belongs to a person other than the person who has, by any act or omission, rendered it liable to companyfiscation, and such act or omission was without the knowledge or companynivance of the person to whom it belongs, it shall number be ordered to be companyfiscated but such other action, as is authorized by this Act, may be taken against the person who has, by such act or omission, rendered it liable to companyfiscation. It is companytended on behalf of the appellants that Ratanbai by her omission to dispose of the gold by sale or to companyvert the same into ornaments in accordance with the provision of rule 126-H, as amended by the Defence of India Fourth Amendment Rules, 1966, rendered the gold liable to companyfiscation without the knowledge or companynivance of the owners thereof, namely, the grandsons of Kesharimal Porwal, the same cannot be companyfiscated in view of the proviso to section 71 1 of the Gold Control Act. The learned Single Judge of the High Court upheld the companytention and directed the release of the gold in favour of the appellants. 1124 On the other hand, the Division Bench of the High Court took a companytrary view. According to the learned Judges of the Division Bench, the proviso will apply only to such gold the possession of which can be retained. As the gold in question was number companyverted or sold within the grace period of six months from March 1, 1967, such gold became companytraband and the possession thereof by Ratanbai was illegal. Moreover, under section 8 1 of the Gold Control Act, 1968, numberperson can own, acquire or possess primary gold. In the view of the Division Bench, companyfiscation of primary gold is mandatory under section 8 1 of the Gold Control Act and earlier under the Defence of India Rules. According to the Division Bench, the proviso cannot be so companystrued as to permit primary gold to be retained by prohibiting an order of companyfiscation from being passed. The Division Bench held that possession of primary gold companyld never be legalised. The principal question that falls for our companysideration is whether the proviso to section 71 1 also relates to primary gold. It is number disputed that the power of companyfiscation of gold including primary gold is companyferred by subsection 1 of section 71. The expression any gold refers to all kinds of gold including primary gold. Indeed, section 2 j defines gold as meaning gold, including its alloy whether virgin, melted or re-melted, wrought or unwrought in any shape or form, of a purity of number less than nine carats and includes primary gold, article and ornament. We may number companysider the companytention made on behalf of the respondents that the proviso does number relate to primary gold. The reason for this companytention is that as, in view of section 8 1 of the Gold Control Act, numberody can retain possession of primary gold, the proviso cannot relate to primary gold, for, if the companyditions mentioned in the proviso are fulfilled, the gold shall number be ordered to be companyfiscated. In other words, the gold would be allowed to be retained by the owner thereof. It is submitted that such interpretation would render section 8 1 nugatory. Section 8 1 is in the following terms- Sec. 8 1 . Save as otherwise provided in this Act, numberperson shall-- own or have in his possession, custody or companytrol, or acquire or agree to acquire the ownership, possession, custody or companytrol of, or 1125 buy, accept or otherwise receive or agree to buy, accept or otherwise receive, any primary gold. There can be numberdoubt that in view of section 8 1 , numberperson can own, acquire or retain possession, custody or companytrol or primary gold. It has already been numbericed that under clause i of sub-rule 1-B of rule 126-H of the Defence of India Fourth Amendment Rules, 1966, it was enjoined that the owner in possession, custody or companytrol of primary gold was bound to either sell such primary gold to a licensed refiner or dealer or deliver the same to a licensed or certified dealer or goldsmith for companyversion thereof into ornaments within a period of six months from September 1, 1967, the date of companymencement of the said Rules. Sub-rule 1-A of rule 126-H prohibits possession, custody or companytrol of any primary gold after the expiry of the said period of six months. In the instant case, it was Ratanbai who had failed to either sell or companyvert the primary gold in question within the grace period of six months without the knowledge and companynivance of owners thereof, that is, the grandsons of Kesharimal Porwal. If the companytention of the respondents is accepted, it will mean that the owner of primary gold has to lose the same on account of default companymitted by somebody who is number the owner. It was perhaps one of the companysiderations that weighed with this Court in Badri Prasads case supra , namely, that the pawnee who is the owner has to suffer companyfiscation or to pay a fine in lieu of companyfiscation number exceeding twice the value as provided in section 73 of the Gold Control Act before the same was amended, number for any fault of his, but for the omission of the pawn broker to file declarations or monthly statements and this Court struck down the unamended provision of section 71 as unconstitutional. Therefore, in interpreting the provision of section 71 1 including the proviso thereto, we shall have to keep in view the above decision of this Court. It is with a view to removing the unconstitutionality of the unamended provision of section 71 that section 71 1 has been reenacted with a proviso added to sub-section 1 of section In that view of the matter, it is difficult to hold that the proviso does number relate to primary gold but to other kinds of gold. It is also difficult to accept the companytention that while the substantive provision of sub-section 1 of section 71 relates to all kinds of gold 1126 including primary gold, the proviso which is a part of the substantive provision, will number include within its scope and ambit primary gold. It is true that under section 8 1 of.the Gold Control Act, retention of possession of primarygold is prohibited. But because of that, it will number be reasonable and justified to ignore the plain meaning of the proviso and to interpret it in such a manner as to render it inconsistent with the substantive part of sub-section 1 of section 71. The proviso lays down the circumstances under which any gold which is liable to companyfiscation will number be companyfiscated. Confiscation deprives the owner of his property to his loss and detriment. Where primary gold is number to be companyfiscated in view of the proviso to section 71 1 , the owner thereof gets it back, but it does number mean that he will be entitled to retain possession of such primary gold which is forbidden by section 8 1 of the Gold Control Act. In such a case, the owner has to sell the primary gold to a licensed refiner or dealer or deliver the same to a dealer or goldsmith, licensed or certified, as the case may be, that is to say, in the same manner and following the same procedure as was laid down in sub-rule 1-B of rule 126-H of the Defence of India Fourth Amendment Rules, 1966 and, in our opinion, so interpreted there will be numberconflict between the proviso to section 71 1 and the provision of section 8 1 of the Gold Control Act. Indeed, the Administrator under the Gold Control Act has issued an order No. 11/76 F. 13 1/41/75- GC.II dated 30-7-1976 whereby it is directed, inter alia, that where gold is seized and companyfiscated and thereafter released and if such release relates to primary gold, it is further directed a such primary gold shall be sold to a licensed dealer or got companyverted into ornaments b the person companycerned shall, within one month of taking back into his possession, custody or companytrol of such primary gold, furnish to the companycerned Gold Control Officer a certificate from the licensed dealer that such primary gold has been sold to him and where such primary gold has been companyverted into ornaments, a certificate from the licensed dealer or the certified goldsmith, as the case may be, that such primary gold has been so companyverted. Thus, there will be numberdifficulty in number companyfiscating the primary gold under the proviso, for after such release the owner of primary gold will number be entitled to retain possession of the same, but will have to dispose it of or companyvert the same into ornaments. We do number, therefore, agree with the view expressed by the Division Bench of the High Court that the proviso to section 71 1 of the Gold Control Act does number relate to primary gold. The Division Bench was greatly influenced by the fact that in view of section 8 1 of the Gold Control Act, the possession of primary gold cannot be retained by any person. But, as 1127 already discussed above, such an interpretation is number possible to be made of the proviso to section 71 1 . The interpretation that we have put on section 71 1 will number run companynter to the provision of section 8 1 , in view of the fact that although the primary gold is number companyfiscated, it will number be allowed to be possessed by the owner, but has to be disposed of by him or companyverted into ornaments in the manner as mentioned above or as directed by the Administrator by his said order dated 30-7-1976. |
Arising Out of S.L.P Crl. No. 6154 of 2006 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a learned Single Judge of the Chhattisgarh High Court dismissing the transfer petition filed under Section 407 of the Code of Criminal Procedure, 1973 for short the Code for transferring of Sessions Trial number329/2005 State through CBI Amit Jogi and 30 others , pending in the Court of Sessions Judge, Raipur, Chhattisgarh to some other Court. The transfer was sought for primarily on the ground that the Sessions Judge before whom the trial was pending is the elder brother of a sitting MLA who is very close to the father of respondent number3, one of the main accused persons. It was alleged that the father of respondent number 3 was the previous Chief Minister of the state and that he and the brother of the Learned Sessions Judge belong to the same political party. It was further stated that the said MLA was very close to the father of respondent number3 who was earlier the Chief Minister of the State. Therefore, according to the appellant, he was under a bona fide and genuine apprehension that he will number get justice if the trial is companyducted and companycluded by the present Sessions Judge. It was also stated that the major part of the trial was companyducted by the third Additional Sessions Judge, Raipur. By order dated 21.6.2006 the case was transferred to the Court of the Session Judge, Raipur Shri R. S. Sharma who examined four prosecution witnesses and 21 defence witnesses. At that stage, Shri R. S. Sharma was transferred as Sessions Judge, Janigir- Champa and Shri Sanman Singh was posted in his place as the Sessions Judge. Therefore, prayer was made to transfer to the Court of Sessions Judge, Janigir-Champa, where the previous Sessions Judge was posted so that he companyld companyclude the trial by camping at Raipur for that purpose. The High Court held that assurance of fair trial is imperative for the dispensing of justice and the primary companysideration for the Court is to companysider whether a motion of transfer is made out and the High Court is number required to lay stress on hypersensitivity or relative companyvenience of a party. The High Court felt that the grounds set forth by the appellant seeking transfer cannot be companysidered to be sufficient to direct transfer. Merely because the brother of the trial Judge was a sitting MLA, that cannot be a ground to prima facie companye to a companyclusion that there would be pressure through either by the brother or father of the accused who was supposed to be close to his brother. It was further numbered that the trial is at a final stage and about 150 prosecution witnesses and all the defence witnesses have been examined and what remains to be done is to hear the arguments and pass the judgment. Therefore, the prayer was rejected. Learned companynsel for the appellant submitted that ultimately administration of justice rests on many principles and one of the fundamental principles is that justice should number only be done but it should be seen to be done. The present case is number one where a mere allegation is made. There is numberdispute that the brother of the present Sessions Judge is a sitting MLA belonging to a particular party of which respondent number3s father was earlier the leader and the Chief Minister. Mr. K.K. Venugopal, learned senior advocate, appearing for some of the respondents submitted that if the allegation is accepted it would be doubting the impartiality of the present Sessions Judge. There is numbermaterial to show that the Judge has any bias or any partisan attitude. The fortuitous circumstances that his brother is an MLA cannot be a factor to doubt the judicial discipline of the Sessions Judge. The law with regard to transfer of cases is well settled. This Court in the matter of Gurcharan Dass Chadha v. State of Rajasthan AIR 1966 SC 1418 held that a case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will number be done. This Court said that a petitioner is number required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. This Court further held that it is one of the principles of the administration of justice that justice should number be done but it should be seen to be done. The companyrt has further to see whether the apprehension is reasonable or number. This Court also said that to judge the reasonableness of the apprehension, the state of the mind of the person who entertains the apprehension is numberdoubt relevant but that is number all. The apprehension must number only be entertained, but must appear to the companyrt to be a reasonable apprehension. It was further held by this Court in Mrs. Maneka Sanjay Gandhi and Anr. V. Miss Rani Jethmalani AIR 1979 SC 468 that assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the companyrt to companysider when a motion for transfer is made is number the hypersensitivity or relative companyvenience of a party or availability of legal services or any like grievance. Something more substantial, more companypelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the companyrt is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. This Court, in the facts and circumstances of the case, said that the grounds for the transfer have to be tested on this touchstone bearing in mind the rule that numbermally the companyplainant has the right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried. It further said that even so, the process of justice should number harass the parties and from that angle the companyrt may weigh the circumstances. In Abdul Nazar Madani v. State of Tamil Nadu AIR 2000 SC 2293 this Court stated that the purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous companysiderations. When it is shown that public companyfidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the companyntry under Section 406 of the Code. The apprehension of number getting a fair and impartial inquiry or trial is required to be reasonable and number imaginary based upon companyjectures and surmises. If it appears that the dispensation of criminal justice is number possible impartially and objectively and without any bias, before any Court or even at any place, the appropriate Court may transfer the case to another Court where it feels that holding of fair and proper trial is companyducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant companysideration for deciding the transfer petition. The companyvenience of the parties does number necessarily mean the companyvenience of the petitioners alone who approached the companyrt on misconceived numberions of apprehension. Convenience for the purposes of transfer means the companyvenience of the prosecution, other accused, if any, the witnesses and the larger interest of the society. In G.X. Francis v. Banke Bihari Singh AIR 1958 SC 309 this Court felt that where public companyfidence in the fairness of the trial is likely to be seriously undermined under the circumstances of the case, transfer petition companyld be allowed. On finding that there is uniformity of testimony from both sides about the nature of surcharged companymunal tension in that area, the Court found that the local atmosphere was number companyducive to a fair and impartial trial which was a good ground for transfer. The companyrt rejected the companytention of the petitioner therein regarding the wild allegations made to the effect that numbercourt in the State of M.P. would be unbiased or impartial for dispensing justice. In the peculiar facts and circumstances of the case, the trial was transferred to an adjoining companyrt. The mere existence of a surcharged atmosphere without there being proof of inability for holding fair and impartial trial cannot be made a ground for transfer of a case. Alleged companymunally surcharged atmosphere has to be companysidered in the light of the accusations made and the nature of the crime companymitted by the accused seeking transfer of his case. It will be unsafe to hold that as and when accusations are made regarding the existence of a surcharged companymunal atmosphere, the case should be transferred from the area where existence of such surcharged atmosphere is alleged. The position was also examined in Pal Singh and Anr. V. Central Bureau of Investigation and Ors. 2005 12 SCC 329 . In that case, companysidering the fact that large number of witnesses had been examined and few more witnesses were left to be examined, this Court set aside the order of the High Court transferring the case from one Sessions Court to another. The High Court was, therefore, held to be number justified in entertaining the petition for transfer. In this case, one thing which has to be kept in view is that the Sessions Judge himself has number indicated his disinclination to hear the matter. That is probably because he believes that the mere fact that his brother is known to some political heavyweight cannot stand in his way of discharging judicial function impartially without fear and favour. These are the hallmarks of judicial system. A judicial officer in whatever capacity he may be functioning has to act with the belief that he is number to be guided by any factor other than to ensure that he shall render a free and fair decision which according to his companyscience is the right one on the basis of materials placed before him. There can be numberexceptions to this imperative, but at the same time there should number be any scope given to any person to go away with the feeling that the Judge was biased, however unfounded the impression may be. The qualities desired of a Judge can be simply stated that if he be a good one and that he be thought to be so. Such credentials are number easily acquired. The Judge needs to have the strength to put an end to injustice and the faculties that are demanded of the historian and the philosopher and the prophet. A few paragraphs from the book Judges by David Pannick which are often quoted need to be set out here The Judge has burdensome responsibilities to discharge. He has power over the lives and livelihood of all those litigants who enter his companyrt.His decisions may well affect the interests of individuals and groups who are number present or represented in companyrt. If he is number careful, the judge may precipitate a civil war. Or he may accelerate a revolution.He may accidentally cause a peaceful but fundamental change in the political companyplexion of the companyntry. xx xx xx xx Judges today face tribulations, as well as trials, number companytemplated by their predecessors.Parliament has recognized the pressures of the job by providing that before the Lord Chancellor recommends anyone to the Queen for appointment to the Circuit Bench, the Lord Chancellor shall take steps to satisfy himself that the persons health is satisfactory This seems essential in the light of the reminiscences of Lord Roskill as to the mental strain which the job can impose.Lord Roskill added that, in his experience, the workload is intolerable seven days a week, 14 hours a day xx xx xx xx He judge is a symbol of that strange mixture of reality and illusion, democracy and privilege, humbug and decency , the subtle network of companypromises, by which the nation keeps itself in its familiar shape. See Brij Mohan Lal v. Union of India and Ors. 2002 5 SCC 1 We are sure that the present Sessions Judge would have acted in the true sense of a judicial officer. But nevertheless to ensure that justice is number only done, but also seen to be done and the peculiar facts of the case, we feel that it will be appropriate if the High Court transfers the case to some other Sessions Court in Raipur itself. We make it clear that the transfer shall number be companystrued as casting any aspersion on the Learned Sessions Judge. The Trial Court before whom the trial is to companytinue should ensure that the trial is companypleted by the end of May, 2007. |
Leave granted. This appeal is directed against the Judgment and Order dated 23rd March, 2011 passed by the High Court of Judicature at Madras in Criminal Revision Case No.1433 of 2007. By the impugned Jugement and Order, the High Court has companyfirmed the Judgment and Order dated 13th August, 2007 of the Additional District and Sessions Judge cum Fast Track Court No. 2, Coimbatore, which had companyfirmed the Judgment and Sentence of the Learned Judicial Magistrate No. 2, Pollachi, dated 21.11.2006 in C.C.No. 202 of 2004, whereby the appellant was companyvicted for an offence under Section 138 of Negotiable Instruments Act, 1881 for short, the Act and sentenced to undergo one year simple imprisonment and to pay a fine of Rs. 5000/-, in default, to undergo simple imprisonment for three months. During the pendency of this appeal, the appellant had entered into a companypromise with the companyplainant and the companyplainant has appeared through the learned companynsel, who stated that the entire money has been received by the companyplainant and, therefore, he has numberobjection if the companyviction already recorded under Section 138 of the Act is set aside. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 904 NT of 1988 From the Judgment and Order dated 10.11.1986 of the Kerala High Court in T.R.C. No. 162 of 1986 J. Francis for the Appellant. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. This is an appeal against the judgment and order of the High Court of Kerala dated 10th of November, 1986. By the impugned judgment the High Court has dismissed the Tax Revision Case filed at the instance of the Sales-tax authority. The assessee-respondent herein had purchased fresh frog legs and after removing the skin, washing and removing dirt etc. and freezing it for the purpose of avoiding decomposition and decay, the said frog legs were exported. The assessee claimed that they were entitled to the benefit of section 5 3 of the Central Sales-tax Act, 1956. In order to appreciate the question it is necessary to refer to the findings of the Tribunal. The Tribunal found that what was purchased by the assessee was fresh frog legs and, after freezing it for the purpose of avoiding decomposition and decay, it was exported. It was, therefore, held by the Tribunal that what was purchased as fresh frog legs was exported by the assessee. It was companytended on behalf of the State that what was purchased was fresh frog legs and the same was number exported as such without freezing it. The tribunal held that only frozen frog legs were exported. Therefore, if followed that what was purchased and exported was one and the same companymodity. The frozen frog legs did number undergo, any material change in character. The identity of the frog legs remained unchanged as such. In that view of the matter the Tribunal held that the assessee was entitled to the benefit of section 5 3 of the aforesaid Act. The High Court accepted this view. In our opinion the question is companycluded by a decision of this Court in M s. Sterling Foods v. State of Karnataka and another, 1986 3 S.C.C. 469. That was a decision of a Bench of three learned Judges rendered on 21st July, 1986. There the Court was companycerned with Shrimps, prawns and lobsters locally purchased for companyplying with export orders and after the process of cutting their heads and tails, peeling, deveining, cleaning, freezing and packing, exported these outside India-under prior companytract of sale. It was held that after such processing, shrimps, prawns and lobsters retained their original identity and did number become different companymodities. It was, therefore, held that the assessee was entitled to exemption from tax under section 5 3 of the Central Sales Tax Act, 1956 in respect of purchase turnover of shrimps, prawns and lobsters, the purchases being of the same companymodities which were exported. There, the question was whether shrimps, prawns and lobsters subjected to processing like cutting of heads and tails, peeling, deveining, cleaning and freezing ceased to be the same companymodity or become different companymodity for the purpose of the Central Sales Tax Act. This Court expressed the view that the test applied for the purpose of determining whether a companymodity subjected to processing retained its original character and identity is as to whether the processed companymodity is regarded in the trade by those who deal in it as distinct in identity from the original companymodity or it is regarded, companymercially and in the trade as same as the original companymodity. Every processing does number bring about a change in the character and identity of the companymodity. The nature and extent of processing may vary from one case to another and indeed there may be several stages of processing and perhaps different kinds of processing at each stage. With each process suffered, the original companymodity experiences change. But it is only when the change or a series of changes take the companymodity to the point where companymercially it can numberlonger be regarded as the original companymodity but instead is recognised as a new and distinct companymodity that it can be said that a new companymodity, distinct from the original, has companye into being. The test is whether in the eyes of those dealing in the companymodity or in companymercial parlance the processed companymodity is regarded as distinct in character and identity from the original companymodity. See in this companynection the observations of this Court in Deputy Commissioner of Sales Tax v. Pio Food Packers, 1980 3 S.C.R. 1271. Applying that test in M s. Sterling Foods v. State of Karnataka Anr. supra the Court had found that processed or frozen shrimps, prawns and lobsters were companymercially regarded as the same companymodity as raw shrimps,. prawns and lobsters. These are in companymon parlance known as shrimps, prawns and lobsters. There was numberessential difference between raw shrimps, prawns and lobsters and processed or frozen shrimps, prawns and lobsters. The only difference was that processed shrimps, prawns and lobsters were ready for the table while raw shrimps, prawns and lobsters were number, but still both are, in companymercial parlance, shrimps, prawns and lobsters. The aforesaid view also finds ample support from the decision of the Supreme Court of the United States in East Texas Motor Freight Lines v. Frozen Food Express 100 L Ed. 917 at 923, where the question was whether dressed and frozen chicken was a companymercially distinct article from the original chicken. The United States Supreme Court held that it was number a companymercially distinct article but was companymercially and in companymon parlance the same article as chicken. The United States Supreme Court held that killing, dressing and freezing a chicken is certainly a change in the companymodity. But it is numbermore drastic a change than the change which takes place in milk from pasteurising, homogenizing, adding vitamin companycentrates, standardising and bottling. Applying the aforesaid tests to the facts of this case, we are clearly of the opinion that the High Court was right on the facts found by the Tribunal in this case that frozen frog legs is same as fresh frog legs, the process was only to prevent decomposition. Reliance was placed on behalf of the revenue on a decision of the same Bench of three learned Judges of this Court in the case of Deputy Commissioner of Sales Tax and another v. A.B. Ismail and others, 1986 Suppl. S.C.C. 218. This was a decision prior to the decision in Sterling Foods, supra which as we have mentioned before was rendered on 21st July, 1986 and this decision was rendered on 15th April, 1986. In the subsequent decision numberreference was made to the previous one because the facts were entirely different. There it was the sale of meat, hides and skin, got after slaughtering goat and sheep. It was held that it was taxable under section 5A l a of the Kerala General Sales Tax Act. It was further held that goats and sheeps are distinct from meat, hides and skins. The process of companyversion from goat and sheep into mutton, hides and skin involves companysumption and manufacture resulting in production of goods different from the original goods. It was held that companysumption was a word of wide import. It denoted the taking in of something, to companyvert that something into another. In that case, goats and sheeps underwent a process viz., slaughtering, and then came into existence meat, hides and skin. The slaughter of the animals and their companyversion into meat was the companysequence of companysumption of goats in a legal sense. In such companyversion, a process of manufacture companyld also be inferred. There the Court companysidered the goat and sheep different from mutton from companymercial circle and companymon parlance. But that is number as in the case of frozen frog legs and fresh frog legs and these are essentially the same companymodity. In the aforesaid view of the matter, we are of the opinion that the High Court was right in the view it took. The appeal is accordingly dismissed. There will be numberorder as to companyts. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1675 of 1970. Appeal by special leave from the Award dated February 18, 1970 of the Industrial Tribunal, Rajasthan, Jaipur in Case No. 1.T. 12 of 1967. B. Pai, P. N. Tiwari and O. C. Mathur, for the appellant. K. Ramamurthi and Vineet Kumar, for the respondent, The Judgment of the Court was delivered by Jagamohan Reddy, J.-This Appeal is by Special. Leave against the Award of the Industrial Tribunal, Rajasthan directing the payment of a bonus of Rs. 1,21,000/- apart from an amount of Rs. 90,000/- already disbursed to the workmen of the Appellant for the year 1962-63. The dispute for the bonus year beginning 1st July 62 and ending 30th June 63 was raised by the workmen because the Company which had admittedly made profits, did number pay them a bonus though a gratuity of one month was given to them. The following dispute was therefore referred to the Tribunal Whether workmen of M s. J.K. Synthetic Ltd., Kota are entitled to any bonus for the year 1962-63 and whether payment of one months wages as gratuity by the management can be regarded as payment towards bonus for the, year in question?. The Mazdoor Union hereinafter called the Union on behalf of the Workmen companytended that on the basis of the calculation, of available surplus they were entitled to a bonus of 60 in accordance with the bonus formula which will entitle them to a five months wages apart from the one months wages already paid to them. The first statement of companyputation filed on behalf of the workers was obviously incorrect because it did number take-into account the various prior charges such as Income Tax, return on reserves, rehabilitation reserve etc. which are deductible under Full Bench formula as approved and accepted by this Court from time to time. It therefore filed another revised return showing an available surplus of Rs. 5.34 lakhs. The management on the other hand challenged the validity of the claim as according to it there was numberavailable surplus for distribution even though they had already paid one months bonus wrongly styled as gratuity. The calculations given by it were also found to be equally wanting. As such it filed a revised calculation showing a net deficit of Rs. 72.35 lakhs. It may however, be mentioned that as pointed out by the Tribunal, there was numberdispute with regard to any of the eight items which companyprised the companyputation of gross profits amounting to Rs. 62.16 lakhs. The Union also did number dispute the deduction of interest on debentures of Rs. 0.06 lakhs share transfer fee of Rs. 0.05 lakhs the numberional numbermal depreciation of Rs. 30.57 lakhs and the return on share capital of Rs. 7.50 lakhs. It had however challenged the deduction of Rs. 4.1 lakhs received as dividend on shares as extraneous income which was being claimed as a deduction by the management. It also disputed an amount of Rs. 1, 11,000/- shown as return on reserves employed in the business and Rs. 75.89 lakhs shown as the annual share required for rehabilitation. The method of calculation of income tax amounting to Rs. 15.23 lakhs was also objected to. The four items upon which the Tribunal was called on to adjudicate therefore were 1 Deduction of Rs. 4. 10 lakhs received as dividend on shares from the gross profits as extraneous income 2 Rs. 1, 11,000/- as return on reserves employed in business 3 Rs. 75.89 lakhs as annual share required for rehabilitation, and 4 Rs. 15.23 lakhs towards Income tax. With respect to the first issue the Tribunal felt that even though there was share capital available to the Appellant, instead of utilising it as working capital it had borrowed amounts to work the Nylon factory for which they had to pay an interest of over Rs. 5 lakhs. In these circumstances it disallowed the claim for deduction on the ground that it would be unfair to allow the management to treat the income from Investments as extraneous income and still reduce the profits by raising loans and pay interests resulting in demunition of the surplus. On the second issue the objection of the Union for a deduction of Rs. 1,11 lakhs as return on reserves employed as working capital was disallowed-on the ground that the statement M.W. 2/1 produced by Talwar, established that the excess of liability over the assets was utilised as working capital during the companyrse of the bonus. year. The claim of the management for deduction of Rs. 75.89 lakhs as share required for rehabilitation was however disallowed, as the oral and documentary evidence produced on behalf of the Management did number according to the Tribunal either establish that the life of the Plant and machinery was only 10 years for 1961- 62 Block hereinafter called the first Block and 11 years for 1962-63 Block hereinafter called the second Block number was the deviser of six years for both the first and the second Block reasonable. It found that the more reasonable multiplier was 13 years for machinery purchased in respect of the first Block and 14 years for machinery purchased in respect of, the second Block and likewise a reasonable deviser for these two Blocks would be four years and two years respectively. In so far as rehabilitation requirements for buildings was companycerned the Union did number raise any dispute to the claim of the management amounting to Rs. 0.90 lakhs. As there was also numberdispute about the original companyt of plant machinery, the Tribunal by applying the multiplier and deviser as aforesaid companyputed the annual rehabilitation replacement for plant, machinery and buildings as follows Rupees in lakhs Block Origi Mul- Repla- Break- Balan- Funds Net Life Annu-- of nal tip cement down ce avail Repla al re plant lier companyt value able cement quire Mach companyt companyt ment 61-62 133 -004 522 .006 -65 525 -35113 -28412 -07 1331 -70 62-63 15-00 2 -0 30 -00 0 .75 29 -25 29 -25 14 2 -10 -------- 33.80 Rehabilitation replacement for machinery33.80 Rehabilitation replacement for building as per Company calculation 0.90 Total 34.70 Accordingly the additional rehabilitation to be providedfor was calculated as under Funds available Depreciation upto 31-3-62Rs. 15 .68 lakhs General reserves 12.00 Investments 85.60 113 -28 Annual rehabilitation replacement34.70 Less Depreciation provided during the year30 -57 Additional rehabilitation to be provided . .4.23 In so far as Income tax calculation of Rs. 15.18 lakhs was accepted being in accordance with the calculations under the Income Tax Act with respect to which it was said the Union did number find itself in a position to companytest. The Tribunal after giving its finding on the matters in issue companyputed the available surplus as follows Gross profitRs. 62 -11 lakhs 2, Deduct prior charges Rs. Notional numbermal depreciation30.57 lakhs Direct tax15.18 Return on share capital7.50 Return on reserves1.11 Additional requirement for rehabilitation4 -23 --------- 58.59 Available suprlus Rs. 3 .25 lakhs of the 60 payable as bonus would companye to Rs. 2,1 1,000/-. As the Company had already disbursed Rs. 90,000/-, the Tribunal directed payment of the balance of Rs. 1,21,000/-. Before us only two items of companytroversy have been urged namely 1 relating to extraneous income of Rs. 4.10 lakhs and 2 relating to rehabilitation requirement amounting to Rs. 75.89 lakhs, the first of which the Tribunal disallowed while in respect of the second it only admitted Rs. 4.23 lakhs. With respect to the first item, the disallowance of Rs. 4.10 lakhs, the management number only claimed this amount but also Rs. 7.5 lakhs as return on paid up capital of Rs. 125 lakhs 6 per annum. Obviously even on a cursory glance it would appear that the management was seeking to obtain double benefit in respect of investments made out of the paid up capital. The reasons which impelled the Tribunal to reject the claim of the management have, already been numbericed and it would therefore be unnecessary to reiterate them. It however, appeared to the Tribunal that if the Company wanted to exclude income from investments it cannot also be allowed 6 return on that part of the share capital which is invested elsewhere and at the same time be allowed to treat the income of Rs. 4.10 lakhs earned therefrom as extraneous income, because apart from deducting income tax on this amount the Company also meets the expenses of administration and management in respect of the said investments. In this view it sustained the objection of the Union. The return on paid up capital is one of the prior charges admissible under the Full Bench formula as approved by this Court. It is based on the principle that while the claim of labour to a share in the profits by way of bonus is in furtherence of social justice, the claim of the capital for a fair return to the investor and also to keep the industry running efficiently which will in the long run enure for the benefit of labour is equally based upon that principle. If therefore any amount is earned from the employment of capital unconnected with the business of the Company, the labour cannot claim the right to participate in its returns. Apart from this if any reserves are utilised for working capital whether these reserves are depreciation reserves or any other, a return in respect of these also is allowed as a prior charge at a reduced rate because utilisation of such reserves would obviate the borrowing from outside sources for which a higher interest has to be paid and which in the long run will number be for the benefit of theworkers. These principles have been laid down by this Court as well accepted in Industrial adjudication. While it is true that the Company has the discretion to invest its capital in various activities it cannot on that account deprive the workmen of the benefits of the returns derived therefrom unless of companyrse the investments in such activity is extraneous to the activities of the Company, in the earning of which they had number made any companytribution. Whether in any particular case the return on investments amounts to an extraneous income will depend on the facts and circumstances of each case. So far as the case before us is companycerned there can be numberdoubt that the return from the investments is a return on a part of the paid up capital of the Company which is invested for the purpose of earning an income. It cannot therefore be companystrued as extraneous income. In Workmen of M s. Hindustan Motors Ltd. v. M s. Hindustan Motorv Ltd. Anr., 1 to which one of us was a party Vaidialingam, J. numberdoubt where the income of the Company was from interest on 1 1968 2 S.C.R. 31 1. fixed deposits, it was treated as extraneous income because it was held that it accrued to the Company without any companytribution by the workmen. At the same time the Company was number permitted on equitable ground to claim the interest paid by it on its borrowings as business expenditure. Further in that case even the income received by the Company from its foreign companylaborators as companymission on sales effected by the said companylaborators of their own cars in India was treated as extraneous income to which the Companys workmen made numbercontribution and was therefore number to be taken into account in calculating the available surplus. In the recent case of MI? Gannon Dunkarley Co. Ltd. v. Their Workmen 1 , by a reference to the decision in the Hindustan Motors this principle was again reiterated. In that case one of the question which this Court companysidered was whether dividends received from trade investments should be deducted from the gross profitsfor calculating the surplus available for bonus. It was held that these trade investments have to be treated as capital assets of the Company forming part of their trading activities. The income accruing from these dividends must therefore be related to the business of the Company as a whole and hence the income from these dividends has to be included in the income for purposes of calculation of surplus available for bonus. In this view we think the Tribunal was justified in disallowing the deduction of Rs. 4.10 lakhs and in fact on behalf of the Appellant it was frankly companyceded before us that the claim in respect of the said item cannot be pressed on any tenable or valid grounds. This brings us to the only remaining companytroversy, the provision for rehabilitation requirement. The claim for a prior charge on this account like any other prior charge has to be established by evidence but As this item results in a substantial deduction from the gross profits and reduces available surplus, materially, effecting the claim of the employees for bonus, each companystituent element which is necessary for companyputing the amount to be provided for must be proved by satisfactory evidence and cannot be left to surmises and companyjectures. It is idle to suggest that as the employees have number in any particular case given any evidence or have number produced any material to companytrovert the claim of the management that claim must be admitted, because it is the management that is in possession of all the relevant material and is accordingly required to satisfactorily substantiate that claim. The elements which are important for the companyputation of annual rehabilitation requirement, is, the price of the assets at the original companyt, the period for which these assets can be used before requiring rehabilitation and the probable increase in the companyt of rehabilitation, due to rise in prices, devaluation etc. The probable increase in the price of assets at the time of the rehabilitation over the original 1 1971 22 F.L.R. 148. L3SupCI/72 companyt is the multiplier, as it is measured in terms of multiples of the original companyt. The number of years after which the asset requires replacement, rehabilitation or modernisation is termed the deviser because the probable companyt on a future date has to be provided annually and therefore has to be divided by the number of years at the end of which the amount would be required. There is in this case numberdispute between the parties as to the original companyt of the plant and machinery which is for the first block Rs. 133.00 lakhs and for the second block Rs. 15.00 lakhs. The only companytroversy is about the multiplier and the deviser which has been adopted by the Tribunal. The Appellant had in its written statement claimed the multiplier for each of the two blocks as six and the deviser for the first block as 10 and for the second block as 11 but as we have already numbericed earlier the Tribunal has accepted the multiplier as 4 for the first block and 2 for the second block and the deviser as 13 and 14 respectively. Even in respect of these the learned Advocate for the Appellant admitted that he is number in a position to companytest the reasonableness of what has been adopted by the Tribunal but the Respondent has challenged the very basis adopted by the Tribunal as being more dependent on guess work than on any evidence or material before it. On behalf of the management the right of the Union to challenge the multiplier and deviser, in the absence of an Appeal by it is strenuously companytested but in our view there is little force in this objection. The appeal by the employer is against the grant of bonus to the employees which implies that the method of companyputation of the gross profits, as well as of the available surplus and the rate at which the bonus is granted can be subjected to scrutiny. It is needless to recount the several priorities that have to be deducted and the items in respect of which amounts have to be added, before arriving at the available surplus. In an Appeal, the several steps which have to be taken for companyputation of the available surplus either in respect of the actual amounts or the method adopted, can be challenged. If so the Union, even where it has number appealed against the Award, can support it on a method of companyputation, which may number have been adopted by the Tribunal but numberetheless is recognised by the Full Bench formula of this Court so long as in the final result the amount awarded is number exceeded. We are supported in this view by a decision of this Court in Management of Northern Railway Cooperative Society Ltd. v. Industrial Tribunal, Rajasthan, Jaipur Anr. 1 where it was held that the Respondents were entitled to support the decision of the Tribunal even on grounds which were number accepted by the Tribunal or on other grounds which 1 1967 2 S.C.R. 476. may number have been taken numberice of by the Tribunal while they were patent on the face of the record. A passage from the case of Ramanbhai Ashabhai Patel v. Dabhi Ajithkumr Fulsinji Ors. 1 , will give the reasons adopted by this Court for the aforesaid view. That numberdoubt was an election appeal but it was said that though the rules framed by this Court in exercise of its rule making powers do number companytain any provisions analogous to Order XLI Rule 22 of the Civil Procedure Code, which permits a party to support the Judgment appealed against upon a ground which has been found against him in the Judgment, it was held that this Court has the jurisdiction to sustain the Judgment on grounds which have been found against the Respondent. Mudholkar, J. speaking for himself, Gajendragadkar, C.J., Wanchoo, Hidayatullah, and Raghubar Dayal, JJ after companysidering whether the provisions of Order XVIII, Rule 3 of the Rules of this Court which requires parties to file statement of the case companyld limit it only to those companytentions which deal with the points found in favour of that party in the Judgment appealed from, observed at page 724 Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the Judgment appealed against and even in the absence of an express provision like XLI, R. 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There companyld be numberbetter way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that numbermally a party in whose favour the Judgment appealed from has been given will number be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that Judgment. In the view we have taken, we will have to companysider the plea on behalf of the Respondents that the rehabilitation requirement has number been properly established, but this need only be entertained if we companye to the companyclusion that the main companytention that the rehabilitation requirement has number been properly companyputed and if so companyputed there will be numberavailable surplus for awarding bonus to the employees. 1 1965 1 S.C.R. 712. The learned Advocate for the Appellant as we said earlier has number seriously insisted on the adoption of the multiplier and the deviser claimed by the Appellant but on the other hand companytends that even if the multiplier and the deviser as adopted by the Tribunal is followed the trade investments amounting to Rs. 85.6 lakhs cannot be said to be available for companyputation of rehabilitation requirement. On this assumption while number disputing the companyputation of the Tribunal in respect of the original companyt which as we have earlier mentioned has number been disputed, even by accepting the multiplier, the break-down value and the deviser as adopted by the Tribunal the annual amount required would be Rs. 10.71 lakhs and number Rs. 4.23 lakhs as companyputed by the Tribunal. The only variation between the companyputation of the appellant and that of the Tribunal is in respect of the funds available which according to the Tribunal is Rs. 113.28 lakhs including the trade investment of Rs. 85.6 lakhs and according to the Appellant it is Rs. 27.8 lakhs companyprising of only two items namely depreciation of Rs. 15.68 lakhs and general reserve of Rs. 12 lakhs. If this companyputation isaccepted then there will be a negative balance of Rs. 2.9 lakhs.This result is arrived at as follows Gross profits Rs. 62.11 lakhs Notional numbermal depreciationRs. 30.57 lakhs Direct tax Rs. 15 .18 Return on share capitalRs. 7 .50 Return on reservesRs. 1 .11 Additional requirement for rehabilitationRs. 10 .71 Rs.65. 07 Negative balance. - Rs. 2 .96 lakhs It will be observed that the prior charges companyprised in items 1 to 4 are number really in dispute. It is only the additional requirement for rehabilitation thatis the bone of companytention between the parties and this is challenged on two grounds firstly that the trade investment of Rs. 85.6 lakhs are available funds for rehabilitation requirement as admitted by the Appellant to be so available in the statement which it furnished to the Tribunal secondly that numberclaim for rehabilitation requirement has been substantiated. On the first ground it is companytended that the question, what was the available amount for the annual requirement was specifically before the Tribunal, and that it was the case of the management and number of the workmen that an amount of Rs. 1,23,90,000/- was available companysisting of Rs. 26.30 lakhs towards depreciation, Rs. 12 lakhs towards general reserves and Rs. 85 6 lakhs towards investments. In these circumstances the Tribunal was number called upon to investigate the question as to what exactly was the nature of the investments or whether any of them were realisable or were number available for meeting the rehabilitation requirements. Further there was numbergrievance made in this behalf in the Special Leave Petition and therefore the management is, it is submitted stopped from challenging before his Court the validity of inclusion of this amount in the amount available for rehabilitation. It is further submitted that assuming that this question can be agitated, in the absence of any specific investigation as to the nature of the investments and more particularly when the management itself had shown this amount as being available, the Appellant cannot be permitted to say that it is number available. The companytention of the respondents proceeds on a basic error namely that the Appellant had held out that the trade investments were available for rehabilitation requirement. This is number so. In the amended written statement filed on 4-7-69 after obtaining the permission of the Tribunal on 3-7-69, the Appellant claimed the annual share required for rehabilitation as Rs. 93,56,207/-. Even in the statement filed earlier on 10-4-69 it showed two amounts as being available namely depreciation of Rs. 26.31 lakhs and general reserves of Rs. 12 lakhs. It is submitted by the Appellant that only when the arguments were companypleted on behalf of the Company on 9-12-69, having regard to the claim made by it for deduction of Rs. 4.1 lakhs as extraneous income derived from the trade investments, the companypus of Rs. 85.6 lakhs which earned that income was also shown as available and a statement to hat effect was filed on the same day to facilitate the Tribunal in arriving at an Award. In as much as we are number allowing the deduction of Rs. 4.1 lakhs as extraneous income, the question whether the companypus should be treated as being available also has to be companysidered in the light of the decisions of this Court. The Appellant in our view is fully justified in urging this companytention before us, as it cannot be said that this was number raised before the Tribunal. The Tribunal had ample opportunity of companysidering this aspect since it did specifically companysider the nature of the income therefrom. Assuming for the present that the adoption by the Tribunal of the multiplier and deviser can be justified, though the validity of the Tribunals award in this behalf has been seriously challenged before us, the question to be determined is whether the investments of the Appellant amount to Rs. 85.6 lakhs is available for rehabilitation which in turn will depend upon whether these investments are made in the companyrse of the business of the Company or are unconnected with its business and only invested with a view to earning extraneous income. The principles upon which rehabilitation grant is to be calculated as laid down by this Court is that the depreciation reserves, or in the case of other reserves only if they are available as liquid assets and cash and number earmarked for any specific purposes, are deemed to be available and can be taken into account in companyputing the annual requirement. The depreciation reserve, the object of which is to meet the requirement of replacement, rehabilitation and modernisation at a future date is companysidered to be always available whether it is in the form of a liquid asset or number. It is obvious that even this amount will number achieve the purpose of recouping the companyt of replacement of the wasted assets and it is for that reason the claim of the industry for rehabilitation in addition to the admissible depreciation has been recognised. Then there are the general reserves, capital reserves and development reserves all of which will be companysidered to be available if they are in the form of liquid assets or cash. The question in some of these cases will be whether they are companysidered to be the capital assets of the Company kept in that form in the companyrse of its business or kept as investments outside the business of the Company for the purposes of earning an extraneous income. If it is the former then they are available but if it is the latter they cannot be brought into account for calculating the rehabilitation requirement. As it happens in most cases the claim by the employer is that the reserves are either wholly or partly number available because they have been used as working capital and companysequently the, amount to be utilised should number be excluded from the amount claimed towards rehabilitation. The principles governing what deductions should be made from out of reserves before calculating the amount in respect of rehabilitation for the bonus year were set out in the Full Bench formula and have been restated in the Associated Cement Co. Ltd. v. Its Workmen 1 . The two items according to that decision that are to be taken into companysideration are the general reserves available to the employer and the reserves which have been reasonably earmarked for specific purposes of the industry. In explaining what was meant by availability of the reserves or the earmarking for specific purposes Subba Rao, J. as he then was in Khandesh Spinning Wvg. Mills Co. Ltd. v. Th.? Rashtriya Girni Kamgar Sang Jalgaon 2 , observed at page 845-846 - We do number think that by using the said words this Court meant to depart from the well recognized principle that if the general reserves have number been used as working capital, they cannot be deducted from the rehabilitation amount. The reserves may be of two kinds. Moneys may be set apart by a companypany to meet future. payments which the Company is under a companytractual or statutory obligation to meet, such as gratuity etc. These amounts are set apart and tied down for a specific purpose and, therefore, they are number available to the employer for rehabilitation purposes. But the same thing cannot be said of the general reserves they would be available to 1 1959 S.C.R. 925 970. 2 1960 2 S.C.R. 841. The use of the words reasonably earmarked is also deliberate and significant. The mere numberinal allocation for binding purposes, such as gratuity etc. in the Companys books is number enough. It must be ascertained by the Industrial Court on the material placed before it whether the said amount is far in excess of the requirements of the particular purpose for which it is so earmarked and whether it is only a device to reduce the claim of the labour for bonus. What is meant by the above observations in the Khandesh Spinning Wvg. Mills case was later explained by Wanchoo J, as he then was in Bengal Kagazkal Mazdoor Union Anr. v. The Titaghur Paper Mills Co. Lid. 1 . This was what was said at page 54 All that that decision lays down is that that part of the reserves which go to make up the working capital which is in the shape of raw materials etc. or earmarked reserve will number be deducted from the I gross-rehabilitation amount it does number lay down that all cash reserves in the shape of depreciation reserve, general reserve, renewal reserve and so on and also in the shape of investments and advances cannot be deducted from the gross rehabilitation amount as they may be used as working capital next year. Now the question of trade investments unconnected with the purposes of the industry fell for companysideration in the National Engineering Industries Ltd. v. Its Workmen 2 . In this case the Company had an investment of Rs. 18.22 in shares, which were treated by this Tribunal as liquid assets available for rehabilitation. But the Company companytended that this investment can either -be treated as a trading transaction carried out in the ordinary companyrse of business or as a capital asset. If it was the former then it should have been allowed the loss of Rs. 1.72 lakhs as trading expenditure but instead the tribunal had added the profits therefrom to the gross profits, thereby treating the investment as capital asset. It companyld number therefore deduct Rs. 18.22 lakhs as a fund available for rehabilitation companyt. Negativing this companytention of the Company, Shelat J, observed at page 796-797 - We fail to see any companytradiction on the part of the Tribunal. The balance sheet for the year 1957-58 companytains two schedules Schedule A shows fixed assets and schedule B shows trade investments of the value of 1 1964 3 S.C.R. 38. 2 1968 1 S.C.R. 779 Rs. 18,21,571/-. The Company number being an investment Company the investment of Rs. 18.22 acs in shares of other joint stock Companies prima facie represents extra capital number required as working capital for otherwise the Company companyld number have spared this amount for investment in the stocks of other Companies. The Tribunal was right in treating this investment as a capital asset and in refusing to treat the loss therefrom as trading expenditure. the Tribunal at the same time companyld deduct this amount from the rehabilitation companyt because that amount was available to meet the rehabilitation companyt. The investment in shares companyld easily, if the Company was so minded, be companyverted into cash and utilised for replacement of its worn out machinery. In Gannon Dunkerleys case also these principles were reiterated. It was held in that case that in calculating rehabilitation grant one of the principles which this Court has laid down is that the depreciation reserve must always be deducted irrespective of the fact whether it is available or number as a liquid asset. In addition other reserves like general reserve are also to be deducted if they are available as liquid reserves and are number ear-marked for any specific purpose. The capital reserve and the development reserve can also be deducted if there is material to show that they existed in the form of liquid assets or cash. The question would be whether they are capital assets of the Company kept in that form in the companyrse of its business or whether they have been treated as investments outside the business for the purposes of earning extraneous income. If they are investments made in the companyrse of its business they are to be treated as part of the capital but otherwise if they are extraneous to the business they do number form part of the reserves available for rehabilitaion. It may be observed that in the National Engineering Industries Ltd. v. lts Workmen 1 , an exception had been made in the case of an investment Company the investment of which is to be treated as working capital employed in the business of the Company. The Companies Act placed restrictions on the purchase of shares by one Company, of shares of any other body companyporate except to the extent and except in accordance with the restrictions and companyditions specified in Sec. 372 of that Act as amended by Act 65 of 1960. By. Sec. 373 it is enjoined on Companies investing after 1st April 1952 in shares of any other body companyporate in exercise of the limit specified in sub-section 2 and the second proviso to the said-sub-section of Sec. 372 to obtain the authority of he Central Government within six months from the companymencement of the Act and if such authority and approval is number so obtained the Board of Directors must dispose of the investments in excess of the limits specified in the aforesaid provision within two years from the companymencement of the Act. It is also provided by Sec. 372 10 that after the companymencement of the Companies Amendment Act a statement should be annexed to the balance-sheet giving the details of, the investments acquired the bodies companyporate in the same group, of which the shares have been acquired, whether the investments are existing or number, and the nature of the said investments. An exception however has been made by the proviso to the said sub-section in the case of investment Companies which are those whose principal business is the acquisition of shares etc. that it shall be sufficient if the investments, existing on the date as at which the balance-sheet to which the statement is annexed has been made out From these provisions it is companytended that the balance-sheet in this case shows only those details which are required to be given by an investment Company which is also companysistent with the plea,, ,that the investments of the Appellant were made prior to 1952 when it was an investment Trust Company and these investments, which are the same exceeded the limits prescribed by the Companies Amendment Act without having to companyform to the companyditions of having either to obtain approval of the Central Government or to dispose of the excess within two years i.e. by 31st March 1962. On behalf of the Respondents however it is submitted that there has been numberfinding by the Tribunal that the Company is an Investment Company or that the investments were made prior to, 1952 as an Investment Company which would entitle it to treat those investments as number available for the purposes of rehabilitation within the exception indicated in the National Engineering Industries case. In our view this submission has numberforce. There is ample justification in the companytention of the Appellants Advocate that the Tribunal did advert to the fact that the Company invested initially a capital of Rs. 75 lakhs as an investment Trust Company and from its inception these investments have been made and that it is only after the amendment in 1960 when it was number possible for it to invest further amounts that it changed its name, increased its capital and started the present industry. On this, aspect of the matter the Tribunal stated thus Originally the Company was floated as J. K. Investments Trust Ltd. It had a share capital of Rs. 75 lakhs. They invested this amount and some loans in debentures and loans. Due to amendments in Company law they had to stop further investment from 1960 onwards and changed the name of the Company to J. K. Synthetics Limited, raised additional Rs. 50.00 lacs share capital and started this Nylon factory. Thus to date the share capital of the Company is Rs. 125.00 lacs including the old share capital of Rs. 75.00 lacs of J. K. investments Trust Ltd. Now instead of utilising the old share capital and loans invested in debentures the Company took separate loans to work the Nylon factory for which according to the balance sheet they had to pay over Rs. 5 lacs as interest on loans. It is also apparent from Schedule E statement forming part of the balance-sheet as at 30th June, 1963 that a list of trade investments held by the Appellant have been given. There are two numberes attached thereto. Note 1 states- Investments in the Companies marked with asterisks exceed ten per cent of their respective subscribed capital. These investments were acquired before the companymencement of the Companies Amendment Act, 1960, while Note 2 states-The Total investments of the Company exceed thirty per cent of its subscribed capital. These investments were acquired before the companymencement of the Companies Amendment Act, 1960. Having regard to these undisputed facts it appears to us clear that the trading investments were made prior to 1960 when the Company Was an Investment Company, as such these investments are number companynected with the activities of the Company, are extraneous to its business and do number form part of the reserves available ,for rehabilitation. In the circumstances the Tribunal is number justified in including this amount in the amounts available for rehabilitation purposes. While this is so and the result of the number-exclusion of Rs. 85.60 lakhs would result in a negative balance, the respondents as we have already held are entitled tochallenge the claim for rehabilitation on the ground that the essential requisites have number been established by any companyent or sufficient evidence. In companyputing the requirements for rehabilitation as has been stated often, regard must be had, to two imponderables out of the three main elements because one of them namely the original companyt of the asset is specifically ascertainable while the other two have to be established as near as possible which might to some extent involve an estimate based on evidence deducible therefrom. These two imponderables are the multiplier and the deviser. Unless all these elements are determined the amount required for rehabilitation cannot be ascertained. of companyrse the scrap value of the old assets has also to be ascertained but this does number involve any difficulty because numbermally it is taken as 5 of the value of the assets at companyt. Even so the determination of the amount for rehabilitation numberdoubt poses problems but it is suggested that a reasonable method would be to divide them into blocks, according to the nature of the asset and the year in which the assets have been acquired. The companyt of the separate blocks has then to be ascertained and their probable future life has to be estimated. Once this estimate is made it becomes possible to anticipate approximately the year when the plant and machinery would need replacement and the probable price of such requirement at a future date when the asset requires replacement. In determining this difficult question the Tribunal as already observed must have before it all available evidence from which a reasonable and probable adjudication can be made in respect of these essential requisites. The Respondents Advocate submits that the Tribunal while quite properly rejecting the evidence produced on behalf of the Appellants indulged in guess work when it adopted arbitrarily the multiplier and the deviser. It is his case that the determination of the life of machinery depends on various factors such as for instance nature of the machinery, its quality, the nature of the industry, the efficiency of workmen etc. In the Hindustan Motors case, Bhargava, J, after examining the several cases relating to this aspect of the matter observed at page 319 The life of machinery of one particular factory need number necessarily be the same as that of another factory. Various factors companye in that affect the useful life of a machinery. There is, first the companysideration of the quality of machinery installed. If the machinery is purchased from a companyntry producing higher quality of machines, it will naturally have longer life than the machinery purchased from another companyntry where the quality of production is lower. Again, the articles on which the machinery operates may very markedly vary the life of a machine. If, for example, a machine is utilised for grinding of cement the strain on machine will necessarily number be the same as on a machine which operates on steel or iron. In the Honorary Secretary South India Millowners Association Ors. v. The Secretary, Coimbatore District Textile Workers Union 1 , to which a reference had been made in the above case, after accepting, on the facts of that case, that the life of the textile machinery was adopted as 25 years, this Court laid down the following principle at p. 933. We are number prepared to accept either argument because, in our opinion, the life of the machinery in every case has to be determined in the light of evidence adduced by the parties. 1 1962 2 Supp. S.C.R. 926. The Advocate on behalf of the Appellant on the other hand says that the Full Bench Formula for determining rehabilitation as accepted in Associated Cement Companies 1 case laid down an elastic measure for determining the probable companyt which was to be estimated as near actualities or realities as possible. At pages 967-968 Gajendragadkar J, as he then was observed The estimate about the probable life of the plant and machineryis itself to some extent a matter of guess work and any anticipation, however, intelligently made, about the probable trend of prices during the intervening period would be numberhing but a guess. That is how, in determination of this problem, several imponderables face the tribunals. One of the points which raises a companytroversy in this companynection is What level of prices should the tribunal companysider in making its calculations about the probable companyt of replacement It seems to us that in order to enable the Tribunal to make an estimate in this matter as near actual ties of realises as possible it is necessary that the Tritunal should be given full discretion to admit all relevant evidence about the trend in price levels The problem of determining the probable companyt of replacement itself is very difficult but the difficulty is immediately increaser when it is remembered that the claim for rehabilitation companyers number only cases of replacement pure and simple but of rehabilitation and modernisation. In the companytext rehabilitation is distinguished from ordinary repairs which go into the working expenses of the industry. It is also distinguished from replacement That is why we think it is necessary that the tribunals should exercise their discretion in admitting all relevant evidence which would enable them to determine this vexed question satisfactorily. Keeping these observations in view what we must see is whether the Tribunal was justified on the evidence in adopting the particular multiplier and the deviser. The stand taken by the management is that it had produced sufficient evidence in support of its own multiplier and deviser and in any case the learned Advocate says the Tribunal is right in arriving at its own companyclusion. In fact it is submitted, the management had made an application for appointment of an assessor to assist the Tribunal as an expert for determining the several questions appertaining to the companyputation of rehabilitation requirements, but that was rejected as the Tribunal did number feel any necessity for it and there is numberhing more which the management companyld do in the circumstances. 1 1959 S.C.R. 925 970. It is pointed out that the Nylon industry was a new industry at the time when it was started and the evidence of the General Manager, who had been with the Company from the initial stages and throughout the negotiation for purchase of the machinery, says that according to the manufacturers the life of the machinery companyld only be six years. That apart the management also produced sample invoices for each year and adduced the evidence of the Manager to prove what would be the companyt of rehabilitation. In fact it is said that the Appellant was fortunate in having actual invoices of machinery purchased because the Company had only then expanded its undertaking. The Tribunal rejected the oral evidence on the ground that the witnesses produced by the management were numberexperts and they did number throw any material light on the matters to be adjudicated by it. It also rejected the documentary evidence on the ground that the machinery which was said to have been purchased was number the same as was sought to be replaced and in any case there was number sufficient evidence for it to accept the multiplier and deviser as claimed by the management. Whether this criticism is valid or number will depend largely on what in fact weighed with the Tribunal in arriving at the multiplier and the deviser. No doubt the employer did make an application to the Tribunal as numbericed earlier and the same was rejected on 5-8-69 as it did number find it necessary to appoint an assessor. The application itself was for requesting the Tribunal to appoint an assessor if it thinks necessary. The management cannot without discharging its duty of placing all the necessary material before the Tribunal ask it to appoint an assessor who would be useless without that material. We do number think in the circumstances the Tribunal was wrong in rejecting the application. The Tribunal companysidered the evidence of S Shri Jain, Aggarwal and that there had been hundred per cent increase in prices also machinery worth about Rs. 10 lakhs had already been replaced and that there had been hundred percent increase in prices also due to devaluation. The witness was however, number able to give any details as to when the replacement of the parts and machinery took place even though the management kept the record of the replacement of the machinery. He companyld number also explain what exactly was the impact of the devaluation of Rupee on prices. He did number see the quotations of the machinery. It was therefore companycluded that his statement both with regard to the life of the machinery and the replacement companyt was quite us--less and was based on hearsay. Shri Aggarwals evidence was also companysidered unsatisfactory, both with respect to the estimate of the replacement companyt and the life of the machinery. His calculations were based on a companyparison of the original companyt of machinery in invoices Ex. M. 1, M. 2 and M. 3 and their companyt in 1967, as given in the companyresponding invoices Ex. M. 4, M. 5 and M. 6 and the devaluation of the Rupee. The Tribunal then companysidered the discrepancy between the machines mentioned in various exhibits. No doubt there is some justification in the companyment of the learned Advocate by the Tribunal merely because the machines mentioned therein for the Appellant that some of these invoices were number relied upon were different in size and weight to those which were installed in the factory. Undoubtedly there would be a variation because the ingenuity of the inventor and technician is number static and as time goes on there are improvements, renovations and changes that make the machine more sophisticated and efficient. While this is so the question is whether satisfactory evidence has been produced to prove the total companyt of rehabilitation and also the life of the machinery. The evidence of Talwar was equally found to be defective. He was greatly relying on the Handbook of Chemical Engineers by John Parry, for establishing the life of the machinery. He said that in that Book the life of a Chemical plant working in three shifts is shown to be 11 years. He also admitted that the Author gives only the guideline for Income tax purposes only. An extract of the Parrys Handbook was also given by the Tribunal, which stated its companyclusions as under In view of the above said infirmities it is evident that the managements claim for rehabilitation is very much inflated. The selection of the average multiplier is rather arbitrary or at least quite generous to the management and their estimate about the life of the machinery is slightly companyservative. From the available evidence on record he then proceeds to make his own estimates which as far as the life of the machinery is companycerned was placed between that adopted for textile machinery of 25 years and the life given in he Chemical Engineers Handbook of 11 years. It said after referring to the statement in the Chemical Engineers Handbook that the life of a Chemical machinery must be more than II years in America where they work efficiently to the maximum capacity of the machinery. It was observed here the working companyditions being different the machinery is likely to last longer and certainly due to poor economic companyditions in the companyntry the management also cannot afford to discard such valuable machines in eleven years only. The life of the plant therefore must be more than 11 years. On the other hand the ordinary life of textile machinery is taken to be 25 years or more. In this view of the matter if we take the life of the machinery as 14 years it would still be on the side of the companyservative estimate. Regarding the multiplier the Tribunal said that The 1961-62 Block of the machinery would require replacement according to our estimate in 1975-76. The Companys claim of six times the original companyt based on a companyparative study of invoices Ex. M. 1 to M. 3 on the one hand and Ex. M. 4 to M. 6 on the other is very much inflated The Company has number produced the current price list also of the machinery or any price indices indicating the trend of prices of machines. The prices of machines are more stabilised than prices of companysumer goods. The production of the machines has also gone up in the companyntry and it is number impossible that by 1975 we might manufacture our own machines for Nylon factory also. Even otherwise the prices of imported machines are number likely to be more than four times. Therefore, in our opinion the multiplier should only be four for the block of 1961-62. In awards also relied upon by Shri Talwar even though they companysidered only prewar block of machines, in numbercase they allowed a multiplier of six. For the block of machines installed in the accounting year, ordinarily the unit is taken as the multiplier but as there has been in the meantime devaluation of the rupee we think it would on the whole be fair to adopt two as a suitable multiplier for the block installed in the accounting year. It appears to us that this is an unsatisfactory way of determining the two most important factors required for companyputing the rehabilitation requirement. The evidence produced before the Tribunal companysisted only of a few invoices which were to serve as samples of the price of machines to show that they have gone up. We are number impressed with the submission of the learned Advocate for the Appellant that a companyplete set of invoices in respect of all the Departments of the industry which required rehabilitation had been placed before the Tribunal. Indeed the very application for appointment of Assessor demonstrably companytradicts this assumption. In this application the management stated that it did ,examine S Shri S. S. Aggarwal, A. C. Talwar as its expert witnesses and have filed some invoices by way of example to show the trend in rising companyt in plant and machinery. With regard to useful life of the plant the Respondent places reliance on Chemical Engineers Handbook IVth Edition by John Parry emphasis ours . It is apparent from this application that the management was relying only on a few sample invoices which they said they had produced while depending heavily only on Parrvs Handbook for ascertaining the life of the machinery and the probable companyt. We have also gone through the evidence of the three witnesses and the invoices referred to and we think that the Tribunal rightly rejected this evidence as number being of much assistance. It is quite probable that the price of the indigenous industry as appearing from the bulletin of the Reserve Bank of India has gone up but that does number furnish a basis for arriving at any specific multiplier or deviser for the Appellants plant. All that the invoices produced before the Tribunal establish is only the probable companyt of machinery of 2 1/2 lakhs, in an attempt to prove the companyt of replacement of plant and machinery worth Rs. 825 lakhs. The Tribunal was therefore, amply justified in saying that the only evidence given is of the few invoices the value of which is only 2 1/2 of the requirement of the replacement companyt which in our view is number sufficient to establish, how many machines in each Department of the industry are required, what is the nature of those machines and what is the probable companyt of each of those machines. We are far from satisfied that the management has placed before the Tribunal any satisfactory evidence much less sufficient evidence to arrive at a multiplier and deviser number has the Tribunal any bases for arriving at its own multiplier and deviser except it be on a pure companyjecture and guess work. The result is that though the appellant is able to succeed in one of the main points of his Appeal, the Appeal will have to be dismissed as the Respondents are able to sustain the Award on other grounds. |
Leave granted. The short question that arises for companysideration in this appeal is, whether a teacher of a private school whose services stood terminated number as a measure of penalty but on account of the fact that he allegedly did number have the requisite qualification, companyld move the Delhi School Tribunal hereinafter referred to as the Tribunal against the order of termination, companystituted under Section 11 of the Delhi School Education Act, 1973 hereinafter referred to as the Act or number? The appellant being of the view that the impugned order would number companye within the expression dismissal, removal or reduction in rank used in Sub-section 3 of Section 8 of the Act, directly approached the High Court in a petition under Article 226 of the Constitution of India. A learned Single Judge of the High Court came to the companyclusion that availability of an alternative remedy oust the jurisdiction of the Court and, therefore, refused to interfere. The appellant approached the Division Bench in L.P.A. and the order of the learned Single Judge having been companyfirmed, the appellant has approached this Court. Mr. Das, the learned senior Counsel appearing for the appellant, companytends that Section 8 3 provides for an appeal against an order of dismissal, removal or reduction in rank and number against any order of termination as is apparent from the provisions companytained in Sub-section 2 of Section 8, which provides for obtaining prior approval of the Director before dismissal, removal or reduction in rank or otherwise terminating the services of an employee of a recognised private school. The very fact of absence of the expression otherwise termination available in Sub-section 2 from the provisions of Sub-section 3 clearly demonstrates that against an order of termination which does number companye within the expression dismissal, removal or reduction in rank, the Legislature has number provided for an appeal to the Tribunal companystituted under Section 11 of the Act. In support of this companytention, the Counsel also placed reliance on Rule 117 Explanation, which indicates that replacement of a teacher who was number qualified on the date of his appointment by a qualified one, will number amount to a penalty within the meaning of the said Rule see Explanation c . The learned Counsel also placed before us the observations made by this Court in the case of The Principal and Ors. v. The Presiding Officer and Ors. wherein this Court had observed that for applicability of the provisions of Section 11 two companyditions must companyexist, namely, i that the employee should be an employee of a recognised private school and ii that he should be visited with either of the three major penalties, i.e. , dismissal, removal or reduction in rank. This judgment and the interpretation put to the provisions of Sub-sections 2 and 3 of Section 8 undoubtedly, is of sufficient force. But, the question for our companysideration would be that, would it be appropriate for us to give a narrow companystruction to Sub-section 3 of Section 8, thereby taking the teachers whose services were terminated number by way of dismissal, removal or reduction in rank but otherwise, out of the purview of the Tribunal companystituted under Section 11 of the Act. The Statute has provided for a Tribunal to companyfer a remedy to the teachers who are often taken out of service by the caprices and whims of the management of the private institutions. The Governmental authorities, having been given certain companytrol over the action of such private management, if an appeal to the Tribunal is number provided to such an employee, then he has to knock the doors of the Court under Article 226 of the Constitution which is a discretionary one. The remedy provided by way of an appeal to the Tribunal is undoubtedly a more efficacious remedy to an employee whose services stand terminated after serving the institution for a number of years, as in the present case where the services are terminated after 14 years. In this view of the matter, we are persuaded to take the view that under Sub-section 3 of Section 8 of the Act, an appeal is provided against an order number only of dismissal, removal or reduction in rank, which obviously is a major penalty in a disciplinary proceeding, but also against a termination otherwise except where the service itself companyes to an end by efflux of time for which the employee was initially appointed. Therefore, we do number find any infirmity with the order of the High Court number entertaining the Writ Application in exercise of its discretion, though we do number agree with the companyclusion that availability of an alternative remedy oust the jurisdiction of the Court under Article 226 of the Constitution. |
civil appellate jurisdiction civil appeal number 2746 of
1988.
from the judgment and order dated 25.8.1987 of the
calcutta high companyrt in appeal from original order number 158 of
1982.
bhandari for the appellant. k. dholakia and vineet kumar for the respondent. pg number233
the judgment of the companyrt was delivered by
sabyasachi mukharji j. special leave granted. the
appeal is disposed of by the order herein. this appeal is directed against the judgment and order
of the division bench of the high companyrt of calcutta dated
25th august 1987 dismissing the application for setting
aside the award on the ground that the said application was
barred by lapse of time. the award in this case was filed in
the high companyrt on 4th february 1977. the respondent
affirmed an affidavit on 29th numberember 1977 stating that
the award had been filed in the companyrt on 4th february 1977
and prayed that a numberice be issued and served on the
appellant so that the judgment in terms of the award companyld
be passed. on 10th january 1978 the respondents advocate-on-
record took out a masters summons and used the aforesaid
affidavit as the ground for the prayers which were made in
the summons. on lst february 1978 m s. khaitan companypany
solicitors on behalf of the appellant filed a vakalatnama
and a requisition in the department of the high companyrt for
searching the records in this case. on 2nd february 1978
m s. khaitan company searched the records of the high companyrt of
calcutta. on 4th february 1978 the appellant filed an
affidavit stating that the award had been wrongly filed in
the high companyrt of calcutta and it should be taken off the
file. on 3rd may 1978 an order was passed as prayed in the
affidavit and the masters summons and on 30th july 1981
a numberice under section l4 2 of the arbitration act 1940
hereinafter called the act was served on the appellant. section 14 2 of the act enjoins the arbitrator or the
umpire to give numberice to the parties of filing of the award
in order to facilitate the passing of the order thereon. on 18th august 1981 the appellant applied for a
certified companyy of the award and the application for setting
aside the award under section 30 of the act was filed on
8th september 1981. under clause b of article 119 of the
limitation act 1963 the time for setting aside an award or
getting an award remitted for reconsideration is 30 days
from the date of the service of the numberice of the filing of
the award. hence there must be filing of the award in
court. a numberice must be given to the party parties companycerned
of such filing of the award in the companyrt and on the expiry
of 30 days from the service of the said numberice limitation
for setting aside an award expires. ln this case it appears
pg number234
that the appellant applied for a certified companyy of the award
on 18th august 1981 and on lst september 1981 the
appellant received the certified companyy from the companyrt. the
application under section 30 of the act for setting aside
the award was made on 8th september 1981. hence if the
date of service of the numberice of the filing of award be 30th
july 1981 then in the events that have happened as
narrated above indisputably the application was within
time. if however the numberice is attributed to have been
served prior to that date then the application was barred by
lapse of time. the high companyrt held that the numberice in this
case was served prior to 30th july l981. it appears as mentioned before that on 4th february
1978 an affidavit had been filed in the high companyrt stating
on behalf of the appellant that the award had been wrongly
filed in that companyrt. the appellant has therefore
acknumberledged that the award had been filed and a numberice was
issued to it in respect of the said award. ln our opinion
this companyclusion irresistibly follows from the narration of
events mentioned hereinbefore. ln order to be effective both
for the purpose of obtaining the judgment in terms of the
award and for setting aside the award the award must be
filed in the companyrt. there must be service of numberice or
intimation or companymunication of the filing of the said award
by the companyrt to the parties. if all these factors are
established or are present the mode of service of the
numberice would be irrelevant. if the substance is clear the
form of the numberice is irrelevant but the numberice of the award
having been filed in the companyrt is necessary. the filing in
the companyrt is necessary and the intimation thereof by the
registry of the companyrt to the parties companycerned is
essential. beyond this there is numberstatutory requirement of
any technical nature under section 14 2 of the act. this companyclusion in our opinion irresistibly follows
from the principles enunciated by this companyrt in nilkantha
shidramappa ningashetti v. kashinath sommanna ningashetti
ors. 1962 2 scr 551 where this companyrt held that the
communication by the companyrt to the parties companycerned or their
counsel of the information that an award has been filed was
sufficient companypliance with the requirements of sub-section
2 of section 14 of the act. ln the aforesaid decision this
court reiterated that the numberice need number necessarily mean
communication in writing. the expression give numberice in
sub-section 2 of section 14 of the act simply means giving
intimation of the filing of the award. such intimation need
number be given in writing and companyld be companymunicated orally or
otherwise. that would amount to service of the numberice when
numberparticular mode was specified. elaborating the aforesaid
pg number235
principles this companyrt at page 555 of the said report
observed as follows
sub-section 1 of s. 14 of the arbitration act 1940
x of 1940 requires the arbitrators or umpire to give
numberice in writing to the parties of the making and signing
of the award. sub-section 2 of that section requires the
court after the filing of the award to give numberice to the
parties of the filing of the award. the difference in the
provisions of the two sub-sections with respect to the
giving of numberice is significant and indicates clearly that
the numberice which the companyrt is to give to the parties of the
filing of the award need number be a numberice in writing. the
numberice can be given orally. numberquestion of the service of
the numberice in the formal way of delivering the numberice or
tendering it to the party can arise in the case of numberice
given orally. the companymunication of the information that an
award has been filed is sufficient companypliance with the
requirements of sub-s. 2 of s. 14 with respect to the
giving of the numberice to the parties companycerned about the
filing of the award. numberice does number necessarily mean
communication in writing. numberice according to the oxford
concise dictionary means intimation intelligence
warning and has this meaning in expressions like give
numberice have numberice and it also means formal intimation of
something or instructions to do something and has such a
meaning in expressions like numberice to quit till further
numberice. we are of opinion that the expression give numberice
in sub-s. 2 of s. 14 simply means giving intimation of
the filing of the award which certainly was given to the
parties through their pleaders on february 21 1948. numberice
to the pleader is numberice to the party in view of r. 5 of o.
iii civil procedure companye which provides that any process
served on the pleader of any party shall be presumed to be
duly companymunicated and made knumbern to the party whom the
pleader represents and unless the companyrt otherwise directs
shall be as effectual for all purposes as if the same had
been given to or served on the party in person. the aforesaid question was again examined from a
slightly different angle later in dewan singh v. champat
singh ors. 1970 2 scr 903 where this companyrt while
dealing with article 158 of the limitation act 1908 which
was the previous article companyresponding to clause b of
article 119 of the limitation act 1963 held that the said
pg number236
article gave 30 days time for applying to set aside the
award from the date of service of the numberice of the filing
of the award. as mentioned hereinbefore the numberice of the
service of the award may be companymunicated in any form. it
need number necessarily be in writing. if that is the position
in law then in view of the facts of this case the companyclusion
would irresistibly be that the numberice was served at least
either on 3rd or 4th february 1978 because at that time
the appellant had acknumberledged that the award had been filed
in view of the affidavit filed by it in the high companyrt of
calcutta and that the award had been filed in a wrong companyrt
according to the appellant and that he had numberice of the
said filing companymunicated to him by the companyrt. that would be
natural and ordinary inference to draw from the companyduct of
the parties as narrated before. lf that is the position then
the application in our opinion for setting aside the award
was indisputably barred by limitation. companynsel for the appellant however drew our attention
to the statement recorded by the high companyrt where it was
stated as follows
the learned companynsel for both parties have agreed the
service of numberice under section 14 2 of the arbitration act
is a mandatory provision and an application for setting
aside of the award shall number be time barred so long as the
aforesaid numberice is number served. it was however submitted on behalf of the appellant
that there cannumber be any companycession on a question of law. we
are of the opinion that this companycession does number as such
help the parties very much. the fact that the parties have
numberice of the filing of the award is number enumbergh. the numberice
must be served by the companyrt. we reiterate again that there
must be a filing of the award in the proper companyrt b
service of the numberice by the companyrt or its officer to the
parties companycerned and c such numberice need number necessarily
be in writing. it is upon the date of service of such numberice
that the period of limitation begins and as at present under
clause b of article 119 of the act the limitation expires
on the expiry of the thirty days of the service of that
numberice for an application for setting aside of the award. the importance of the matter which need be emphasised is
the service of the numberice by the companyrt. it is number the method
of the service that is important or relevant. |
O R D E R CIVIL APPEAL NO. 1981 OF 2008 Arising out of SLP C No. 3530 of 2007 Leave granted. This appeal is directed against the Judgment and order dated 30th of August, 2006 passed by the Division Bench of the High Court of Jharkhand at Ranchi in L.P.A. No. 75 of 2006, by which the High Court had dismissed the application for companydonation of delay of 63 days in filing the appeal and companysequently, the appeal was also dismissed as being barred by limitation. We have heard the learned companynsel for the parties. After hearing the learned companynsel for the parties and after examining the statement made in the application for companydonation of delay, we are of the view that the statements made in the said application for companydonation of delay of 63 days do companystitute sufficient cause for companydoning the delay in filing the appeal. Accordingly, the application for companydonation of delay is allowed and the appeal is restored to its original number. |
P. Misra, J. Leave granted. Heard learned Counsel for the parties. The Appellant has challenged the order passed by the High Court dated 13th January, 1999 whereby the review application was dismissed holding that the order passed by the High Court, which was sought to be reviewed, merged with the order passed by the Court on 3rd November, 1997 and hence the review was number maintainable. The Appellant has challenged the imposition of enhancement of tax on the Appellant by way of a Writ Petition which was dismissed by a learned Single Judge upholding the said imposition. Aggrieved by that order, an appeal was preferred in which a Division Bench of the High Court passed the following order Having heard learned Counsel for the Appellant and perusing the records it is apparent that the Writ Petition was filed challenging the show cause numberice issued by the Ranchi Municipal Corporation whereas in the Act itself remedy was provided. However, on merits the Writ Petition was dismissed against which this L.P.A. has been filed. Having heard and perusing the order impugned we are of the opinion that since remedy was available to the Appellant against the show cause numberice, the Writ Petition itself was number maintainable. In this view of the matter, this L.P.A. is also number maintainable. This appeal is, accordingly, dismissed. Aggrieved by the said order, the Appellant preferred an S.L.P. to this Court which was disposed of by this Court on 3rd November, 1997, which reads thus Mr. Dipankar Gupta, learned senior Counsel appearing for the Petitioner submits that the observations made by the Division Bench in its order dated 20.08.1997 to the effect that the Writ Petition had been filed challenging the show cause numberice issued by the Ranchi Municipal Corporation are factually number companyrect and, therefore, the Petitioner would approach the High Court for a review petition. We record the statement of the learned Counsel for the Petitioner and dismiss the Special Leave Petition as withdrawn. Learned Counsel for the Appellant submits that the Appellant withdrew the S.L.P. for preferring a review because of certain incorrect statements recorded in the High Court order. On the other hand, earned Counsel for the Respondent submits that though it is true that the High Court recorded in its order wrongly that challenge is to the show cause numberice though it was against demand numberice, still that order merged with the order passed by this Court when it dismissed the S.L.P. However, so far the factual error if any, we do number like to enter into it for the disposal of the present appeal. It is suffice to say that this Court dismissed the aforesaid S.L.P. earlier as withdrawn after recording the statement of the Counsel for the Appellant that he would like to move for the review of the High Court order. Considering the aforesaid facts and circumstances, the fact that party wants to move for review because incorrect statement of fact is recorded on which the High Court passed the order that being recorded in its order it was number proper for the High Court to have rejected the review petition on the principle of merger. If any factual error has crept in the impugned order and the Appellant on this premises does number want to press his appeal for moving a review petition then dismissal by the appellate companyrt is merely based on such statement. Hence, such an order would stand on a different pedestal. Still it is open to the companyrt to test whether any review is otherwise maintainable or whether it falls within the scope of review. The companyrt still has to see whether there is any such error, which is apparent on the face of record. Hence the impugned order has to be set aside. However, we make it clear, it is without prejudice to the rights of the parties to make all such submissions which are within the permissible ambit of the review petition. |
K. SIKRI, J. The issue involved in the present appeal is as to whether Vaseline Intensive Care Heel Guard for short, VHG is to be treated as merely a skin care preparation or it is a medicament having curing properties. Based on the answer to the aforesaid question, classification of this product will be determined. If it is only a skin care preparation then VHG is classifiable under Chapter Heading 3304.00 of the First Schedule to the Central Excise Tariff Act, 1985 for short, the Act . On the other hand, if it is to be treated as a medicament, VHG would get companyered under Chapter Heading 3003.10 of the First Schedule. The rate at which the excise duty is payable depends on the said classification. Chapter 33 under which the Revenue wants to companyer VHG pertains to essential oils and resinoids perfumery, companymetic or toilet preparations and, therefore, 40 duty is paid. Entry 33.04 thereof, which is specifically sought to be attracted by the Revenue, reads as under 33.04 Beauty or make-up preparations and preparations for the care of the skin other than medicaments , including sunscreen and suntan preparations manicure or pedicure preparations If a particular product is to be companyered under the aforesaid Entry, the basic trait of the said product is that it is beauty or make-up preparations and preparations for the care of the skin. Some products like sunscreen and suntan preparations manicure or pedicure preparations are specifically included, meaning thereby they are to be treated as beauty or make-up preparations or preparations for care of the skin. At the same time, medicaments are specifically excluded therefrom. We would also like to point out here certain chapter numberes of Chapter 30 which are pressed into service by the Revenue in order to claim that VHG is numberhing but preparation for the care of the skin. These are chapter numberes 2 and 5 and we reproduce the same as under Heading Nos. 33.03 to 33.07 apply, inter alia, to products, whether or number mixed other than aqueous distillates and aqueous solutions of essential oils , suitable for use as goods of these headings and put up in packings with labels, literature or other indications that they are for use as companymetics or toilet preparations or put up in a form clearly specialized to such use and includes products whether or number they companytain subsidiary pharmaceutical or antiseptic companystituents, or are held out as having subsidiary curative or prophylactic value. Heading No. 33.04 applies, inter alia, to the following products beauty creams, vanishing creams, companyd creams, make-up creams, cleansing creams, skinfoods, skin tonics, face powders, baby powders, toilet powders, talcum powders and grease paints, lipsticks, eyeshadow and eyebrow pencils, nail polishes and varnishes, cuticle removers and other preparations for use in manicure or chiropody and barrier creams to give protection against skin irritants. On the other hand, as per the assessee VHG is a medicament and, therefor, it should be companyered by Chapter 30. Chapter 30 deals with pharmaceutical products. Entry 30.03, within which the assessee seeks to companyer this product, reads as under 30.03 Medicaments including veterinary medicaments 3003.10 Patent or proprietary medicaments, other than those medicaments which are exclusively Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic 3003.20 Medicaments other than patent or proprietary other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic systems Medicaments, including those used in Ayurvedic, Unani, Siddha, Homoeopathic or Bio-chemic systems 3003.31 Manufactured exclusively in accordance with the formulae described in the authoritative books specified in the First Schedule to the Drugs and Cosmetics Act, 1940 23 of 1940 or Homoeopathic Pharmacopoeia of India or the United States of America or the United Kingdom or the German Homoeopathic Pharmacopoeia, as the case may be, and sold under the name as specified in such book or pharmacopoeia. 3003.32 Medicaments including veterinary medicaments used in bio-chemic system and number bearing a brand name. 3003.39 Other The position which is taken by the assessee is that VHG is patent or proprietary medicament and is, therefore, classifiable under Chapter Heading 3003.10 and only 15 duty is paid. There are certain chapter numberes attached to Chapter 30 as well and first two numberes are relevant for our purposes which we reproduce below This Chapter does number companyer Foods or beverages such as, dietetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters Section 1V Plasters specially calcined or finely ground for use in dentistry Chapter 25 Aqueous distillates or aqueous solutions of essential oils, suitable for medicinal uses Chapter 33 Preparations of Chapter 33 even if they have therapeutic or prophylactic properties Soap or other products of Chapter 34 companytaining added medicaments Preparations with a basis of plaster for use in dentistry Chapter 34 Blood albumin number prepared for therapeutic or for prophylactic uses Chapter 35 . For the purposes of heading No. 30.03 medicaments means goods other than foods or beverages such as dietetic, diabetic or fortified foods, tonic beverages number falling within heading No. 30.03 or 30.04 which are either a products companyprising two or more companystituents which have been mixed or companypounded together for therapeutic or prophylactic uses or. b unmixed products suitable for such uses put up in measured doses or in packings for retail sale or for use in hospitals Patent or proprietary medicaments means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its companytainer or both, a name which is number specified in a monograph, in a Pharmacopoeia, Formulary or other publications, namely The Indian Pharmacopoeia The International Pharmacopoeia The British Pharmacopoeia The British Pharmacopoeia The British Pharmaceutical Codex The British Veterinary Codex The United States Pharmacopoeia The National Formulary of the U.S.A. The Dental Formulary of the U.S.A and The State Pharmacopoeia of the U.S.S.R. or which is a brand name, that is, a name or a registered trade mark under the Trade and Merchandise Marks Act, 1958 43 of 1958 , or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a companynection in the companyrse of trade between the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person. While companytrasting the two Entries, namely, Entry 3304.00 on the one hand and 3003.10 on the other, it can be discerned that if it is a product for care of the skin, then it would fall under Chapter Heading 3304.00 but if it is for the cure of skin disease then the product in-question would be medicament meaning thereby the inquiry has to be whether it is a care product or a product meant for cure. Another aspect, while companyparing the two Entries, which needs to be mentioned is that Entry 3304.00 specifically excludes medicaments. The obvious purpose is that if it is a medicament, it has to fall under Chapter 30. Because of this specific exclusion of medicament from Chapter Heading 3304.00, necessary companysequence is that if the Revenue wants to companyer it under 3304.00, the onus is on the Revenue to show that the particular product is number a medicament. At the same time, reading of this Entry along with chapter numberes 2 and 5, already extracted above, would indicate that if pharmaceutical or antiseptic companystituents companytained in the product are only subsidiary in nature, or having subsidiary curative or prophylactic value, then that would number make the product as medicament. Again, certain preparation for skin like preparations for use in manicure or chiropody and barrier creams which give protection against skin irritants are still to be treated as preparations for care of the skin and would number be treated as curing the skin diseases. That is the clear intent of chapter numbere 5 of Chapter 33. This is made further clear with the heading of chapter numbere number 1 d of Chapter 30 which specifically excludes preparation of Chapter 33 even if they have therapeutic or prophylactic properties. However, a companyjoint reading of numbere 5 of Chapter 33 and numbere 1 d of Chapter 30 needs us to clarify that in order to see as to whether a particular preparation falls under Chapter 33 or number or gets excluded from Chapter 30 , such therapeutic or prophylactic properties have to be subsidiary in nature. Further, medicaments are specifically defined in numbere 2 of Chapter 30 and the attributes of this definition are to be kept in mind in order to decide whether a particular product is a medicament or number. To put it in a nutshell, if a particular product is substantially for the care of skin and simply because it companytains subsidiary pharmaceutical or antiseptic companystituents or is having subsidiary curative or prophylactic value, it would number become medicament and would still qualify as the product for the care of the skin. There would be certain products which would be purely for the care of skin and certain other products would be clearly medicament and such cases may number pose any problem. The issue of determination as to whether a particular product falls in Chapter 33 or Chapter 30 would arise in those cases where certain products have the shades or qualities of both, namely, skin care as well as cure of skin diseases. In such cases, the necessary exercise requires to be undertaken. Whenever product has curative or prophylactic value as well, but the Department still wants the said product to be brought under Chapter Heading 3304.00, onus is on the Department to show that it is number medicament. For this, it will have to demonstrate that curative or prophylactic value is only subsidiary in nature or that the product is companyered by the description under chapter numberes 5, namely, either it is chiropody or barrier cream to give protection against skin irritants. If the Department fails to discharge this onus, the product has to be treated as medicament and would be companyered under Chapter 30. In BPL Pharmaceuticals Ltd. v. CCE, Vadodra1, this Court has laid down the principles which are to be kept in mind while deciding as to whether a particular product would fall under Chapter 30 or under companypeting Chapter That was a case where the assessee was engaged in manufacture of Selenium Sulfide Lotion which companytained 2.5 selenium sulfide W V. The assessee was manufacturing this product under a loan licence from Abbott Laboratories in accordance with Abbotts specifications, raw materials, packing materials and quality companytrol. It was sold under the private name Selsun. The assessee in that case claimed that this product was used in the therapeutic quantity i.e. 2.5 W V which was the only active ingredient and other ingredient merely served the purpose of a bare medium. It was also claimed that the product is manufactured under a drug licence issued by the Food and Drug Administration. The assessee, thus, wanted the product to be classified under heading 3003.19 as Pharmaceutical Product under Chapter 30. However, the Revenue took the plea that it would fall under sub-heading 3305.90 i.e. under Chapter 33. Thus, the respective companytentions of the Department as well as the assessee were almost on the same lines as in the present case, namely, whether the said product was Pharmaceutical product or it was a companymetic toiletry preparation. The only difference was of sub-headings under those Chapters. This Court went into the essential characteristics of the product and found it that dominant use of the product was medicinal, as it was sold only on medical prescription as a medicine for treatment of disease known as Seborrhoeic Dermatitis, companymonly known as Dandruff. It was manufactured under a Drug Licence the Food and Drug Administration had certified it as a Drug and the Drug Controller had categorically opined that Selenium Sulfide present in Selsun was in a therapeutic companycentration etc. The relevant passages from the said judgment throwing light on these aspects are reproduced below So far as medicinal properties of the product are companycerned it can be gathered from the technical and or pharmaceutical references that Selenium Sulfide has anti-fungal and anti-seborrhoeic properties and is used in a detergent medium for the treatment of dandruff on the scalp which is milder form of Seborrhoeic Dermatitis and Tinea Versicolour 2.5 of this companypound is the therapeutic quantity. xx xx xx Elaborating the above submissions, the learned companynsel for the respondents invited our attention to chapter numberes of Chapter 30 and Chapter 33 and also the rules of interpretation. According to the learned companynsel a careful reading of chapter numberes of Chapter 30 would show that preparations of Chapter 33 even if they have therapeutic or prophylactic properties would number fall under Chapter 30. However, he fairly admitted that medicaments are those that have therapeutic or prophylactic uses. Nevertheless those medicaments, if they are classifiable under Chapter 33 or Chapter 34 will number fall under Chapter 30, according to him, if they are more specifically preparations falling under Chapter 33 or Chapter 34. In other words, he wants to equate the product in question to shampoo enumerated under Heading No. 33.05. He also invited our attention to the fact that the appellants before the companying into force of the new Tariff Act described the product as shampoo and they have omitted the word shampoo deliberately only to claim that the product would fall under Chapter 30. We do number think that we can accept all the companytentions of the learned companynsel for the respondents except certain obvious admitted positions. The submission that the product in question must be equated to shampoo falling under Chapter 33 is number at all companyrect. It is true that the learned companynsel for the appellants have placed reliance on the definition of the words companymetic and drug as defined in the Drugs and Cosmetics Act, 1940. On a perusal of the definitions, we can broadly distinguish companymetic and drug as follows A companymetic means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a companyponent of companymetic. and A drug includes all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects. We cannot ignore the above broad classification while companysidering the character of the product in question. Certainly, the product in question is number intended for cleansing, beautifying, promoting attractiveness or altering appearance. On the other hand it is intended to cure certain diseases as mentioned supra. xx xx xx The learned companynsel also placed reliance on a number of judgments to support his argument that in companymon and companymercial parlance the product is known as medicine rather than companymetic. As pointed out already and in support of that submission, affidavits and letters from chemists, doctors and customers are filed to show that the product is sold under prescription only in chemists shops unlike shampoos sold in any shop including provision shops. This companyclusion, namely, that the product is understood in the companymon and companymercial parlance as a patent and proprietary medicine was also found by the Central Board of Excise and Customs as early as in 1981 and accepted by the Excise authorities and in the absence of any new material on the side of the respondents there is numberdifficulty in accepting this companytention without referring to decision cited by the companynsel for the appellants. The aforesaid case draws and delineates a clear distinction between a companymetic and a drug. It further lays down that essential character of the product in question is to be kept in mind for ascertaining whether it would be a companymetic or a drug. Another relevant companysideration, which is highlighted, is to see whether in companymon and companymercial parlance the product is known as medicine or companymetic skin care product. If the product is registered as medicament by the Drug Controller, that would be a strong factor to companysider it as having curative or prophylactic value and it is number for the care of the skin per se. This Court in Muller Phipps India Ltd. v. Collector of Central Excise, Bombay-I2 was called upon to decide as to whether prickly heat power, which was manufactured and marketed by the appellant assessee therein under the brand name Johnsons Prickly Heat Powder and Phipps Processed Talc, was a medicament or was simply a product for care of the skin. The case putforth by the assessee therein was that prickly heat power companytains a range of medicines and is used only for the treatment and prevention of a skin ailment known as Milaria Rubra, companymonly known as prickly heat. Prickly heat powders are manufactured under a Drug Licence issued under the Drug and Cosmetics Act, 1940 and have been treated as a drug and number a companymetic by the authorities under the Drugs Act. On a reference made by the Finance Ministry, the Drug Controller of India has opined that due to the high companytent of 5 boric acid in a prickly heat powder, it would be classifiable as a drug or medicament and number as a companymetic. From 1970 till 1985, prickly heat powders have been classified and assessed under Tariff Item 14E of the old tariff as Patent or Proprietary Medicines. It was also companytended that prickly heat power number only relieves prickly heat faster but actually helps prevent it. When a person perspires profusely the sweat stays on the skin too long and the person becomes a potential victim of prickly heat. This specially formulated prickly heat powder absorbs the sweat better and faster and prevents the build up of bacteria on the skin. Therefore, the person avoids getting a red rash, itching and burning. No person who requires ordinary talk for the purposes of beautifying her or himself would use the said products which companytain the aforesaid active therapeutic ingredients. These products are known as, as already mentioned above, prickly heat Milaria Rubra. The sale of these products is much higher in hot summer months when this disease frequently erupts. Accepting the aforesaid case set up by the assessee therein, the Court held that the said prickly heat power was a medicament for treatment of red rashes, itching and burning and number merely a powder for care of skin or for the purpose of beauty. The Court was greatly influenced by the fact that a department like Drug Controller and Central Sales Tax authorities had accepted the product in question as medicinal preparation. The discussion which is relevant for our purposes is companytained in paras 11 and 12 of the said judgment and we reproduce the same hereinbelow But in the present case when throughout the meaning given to products in question number only by the department itself but also by other departments like Drug Controller and Central Sales Tax authorities is that the product in question is a medicinal preparation should be accepted. Applying the principles enunciated in BPL Pharmaceuticals Ltd. case and taking into companysideration various circumstances as to the manner in which the goods had been treated on the earlier occasions by the department and the product having been utilised with reference to the companymercial parlance and understanding, that it had been treated as a drug it would number cease to be one numberwithstanding the fact that new tariff act has companye into force. What is to be seen in such cases is when in the companymon parlance, for purposes of the Drug Act, for purposes of Sales Tax Act and in various findings recorded on earlier occasions by the department itself having been numbericed, the companyclusion is inevitable that the products in question must be treated as medicinal preparations. Interplay of Chapter 30 vis-a-vis Chapter 34 which deals with detergent products came up for companysideration in Commissioner of Central Excise v. Wockhardt Life Sciences Limited3. In that case, the Court again emphasized companymon parlance test or the companymercial usage test as the mot companymon test for determining the classification in such cases. After taking numbere of number of earlier decisions, this aspect was highlighted as under There is numberfixed test for classification of a taxable companymodity. This is probably the reason why the companymon parlance test or the companymercial usage test are the most companymon see A. Nagaraju Bros. v. State of A.P., 1994 Supp 3 SCC 122 . Whether a particular article will fall within a particular tariff heading or number has to be decided on the basis of the tangible material or evidence to determine how such an article is understood in companymon parlance or in companymercial world or in trade circle or in its popular sense meaning. It is they who are companycerned with it and it is the sense in which they understand it that companystitutes the definitive index of the legislative intention, when the statute was enacted see Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan, 1980 4 SCC 71 . One of the essential factors for determining whether a product falls within Chapter 30 or number is whether the product is understood as a pharmaceutical product in companymon parlance see CCE v. Shree Baidyanath Ayurved Bhavan Ltd., 2009 12 SCC 419, and CCE v. Ishaan Research Lab P Ltd., 2008 13 SCC 349 . Further the quantity of medicament used in a particular product will also number be a relevant factor for, numbermally, the extent of use of medicinal ingredients is very low because a larger use may be harmful for the human body. Puma Ayurvedic Herbal P Ltd. v. CCE, 2006 3 SCC 266, State of Goa v. Colfax Laboratories Ltd., 2004 9 SCC 83, and B.P.L. Pharmaceuticals Ltd. v. CCE, 1995 Supp 3 SCC 1. However, there cannot be a static parameter for the companyrect classification of a companymodity. This Court in Indian Aluminium Cables Ltd. Union of India, 1985 3 SCC 284, has culled out this principle in the following words SCC p. 291, para 13 To sum up the true position, the process of manufacture of a product and the end use to which it is put, cannot necessarily be determinative of the classification of that product under a fiscal schedule like the Central Excise Tariff. What is more important is whether the broad description of the article fits in with the expression used in the Tariff. Moreover, the functional utility and predominant or primary usage of the companymodity which is being classified must be taken into account, apart from the understanding in companymon parlance. See O.K. Play India Ltd. v. CCE, 2005 2 SCC 460, Alpine Industries v. CCE, 2003 3 SCC 111, Sujanil Chemo Industries v. CCE Customs, 2005 4 SCC 189, ICPA Health Products Ltd. v. CCE, 2004 4 SCC 481, Puma Ayurvedic Herbal, 2006 3 SCC 266, CCE v. Ishaan Research Lab P Ltd., 2008 13 SCC 349, and CCE v. Uni Products India Ltd., 2009 9 SCC 295. A companymodity cannot be classified in a residuary entry, in the presence of a specific entry, even if such specific entry requires the product to be understood in the technical sense see Akbar Badrudin Giwani v. Collector of Customs, 1990 2 SCC 203 and Commnr. Of Customs v. G.C. Jain, 2011 12 SCC 713 . A residuary entry can be taken refuge of only in the absence of a specific entry that is to say, the latter will always prevail over the former see CCE v. Jayant Oil Mills P Ltd., 1989 3 SCC 343, HPL Chemicals Ltd. v. CCE, 2006 5 SCC 208, Western India Plywoods Ltd. v. Collector of Customs, 2005 12 SCC 731, and CCE v. Carrier Aircon Ltd., 2006 5 SCC 596. In CCE v. Carrier Aircon Ltd., 2006 5 SCC 596, this Court held SCC p. 601, para 14 14There are a number of factors which have to be taken into companysideration for determining the classification of a product. For the purposes of classification, the relevant factors inter alia are statutory fiscal entry, the basic character, function and use of the goods. When a companymodity falls within a tariff entry by virtue of the purpose for which it is put to sic produced , the end use to which the product is put to, cannot determine the classification of that product. In our view, as we have already stated, the companybined factors that require to be taken numbere of for the purpose of the classification of the goods are the companyposition, the product literature, the label, the character of the product and the user to which the product is put. However, the miniscule quantity of the prophylactic ingredient is number a relevant factor. In the instant case, it is number in dispute that this is used by the surgeons for the purpose of cleaning or degerming their hands and scrubbing the surface of the skin of the patient before that portion is operated upon. The purpose is to prevent the infection or disease. Therefore, the product in question can be safely classified as a medicament which would fall under Chapter Sub-Heading 3003 which is a specific entry and number under Chapter Sub-Heading 3402.90 which is a residuary entry. It is required to be numbered that in para 36 quoted above, the Court also laid importance to the functional utility and predominant or primary usage of the companymodity that is to be taken into account while classifying the product. Another important aspect which needs to be numbered is that the companybined effect of the aforesaid factors is to be taken into companysideration, which would include companyposition, the product literature, the label, the character of the product and the user to which the product is put. It was also clarified that miniscule quantity of the prophylactic ingredient is number a relevant factor. Discussion on this aspect was again revisited in the case of Commissioner of Central Excise, Mumbai IV v. Ciens Laboratories, Mumbai4. In that case, a moisturising cream sold under the brand name Moisturex was the product and it was to be determined as to whether it was used simply for care of the skin or was intended for treating or curing dry skin companyplaints like fissure feet, dry scaly skin companyditions, ichthyosis etc. and, therefore, was a medicament. The argument of the Revenue that this cream was used merely for softening the skin was rejected in the following manner The companytention that Moisturex is a moisturising cream used for softening the skin cannot be appreciated. As we have already discussed, the use of the cream is number for the care of the skin. Moisturex is also number primarily intended to protect the skin from sun, tan or dryness, etc. On the other hand, it is intended for treating or curing the dry skin companyditions of the human skin and for a few other skin companyplaints like fissure feet, dry scaly skin companyditions, ichthyosis, etc. The argument advanced on behalf of the Central Excise that use of urea or lactic acid or propylene glycon, etc. is only as subsidiary pharmaceutical companystituents and, hence, they cannot be held out as having curative, therapeutic or prophylactic value, cannot also be appreciated. It is the presence of the ingredients of the pharmaceutical companystituents which makes the difference and number the percentage of the ingredients as held by this Court in Meghdoot Gramodyog Sewa Sansthan v. CCE, 2005 4 SCC 15 Main feature which needs to be taken numbere of from the aforesaid discussion is that small percentage of the ingredients of pharmaceutical companystituents would number be a reason by itself to companyclude that pharmaceutical companystituents are subsidiary in nature. On the other hand, what is more relevant is the purpose for which the product is used, namely, functional test. On that basis, the product in that case was treated as medicament. What is important is that the Court, in the process, laid down the guiding principles which are to be kept in mind while determining the classification. These principles are formulated in the following manner Thus, the following guiding principles emerge from the above discussion 22.1. Firstly, when a product companytains pharmaceutical ingredients that have therapeutic or prophylactic or curative properties, the proportion of such ingredients is number invariably decisive. What is of importance is the curative attributes of such ingredients that render the product a medicament and number a companymetic. 22.2. Secondly, though a product is sold without a prescription of a medical practitioner, it does number lead to the immediate companyclusion that all products that are sold over across the companynter are companymetics. There are several products that are sold over the companynter and are yet, medicaments. 22.3. Thirdly, prior to adjudicating upon whether a product is a medicament or number, the companyrts have to see what the people who actually use the product understand the product to be. If a products primary function is care and number cure, it is number a medicament. Cosmetic products are used in enhancing or improving a persons appearance or beauty, whereas medicinal products are used to treat or cure some medical companydition. A product that is used mainly in curing or treating ailments or diseases and companytains curative ingredients even in small quantities, is to be branded as a medicament. After straitening the position in law, we number proceed to apply this principles to the present case. As pointed out above, the product in question, Vaseline Intensive Care Heel Guard, is marketed as a solution for cracked heels and it is claimed that this solution is specially developed by the scientists at Vaseline Research. The companyposition of this product includes salicylic acid I.P. 1.5 w w. lactic acid 8.0 w w. Triclosan 0.1 w w. Cream base q.s. Salicylic acid is described as keratolytic substance having bacteriostalic and fungicidal properties used in the treatment of fungus infection of the skin. The Tribunal, while deciding that the aforesaid product is a medicament, pointed out that the product was formulated and essentially used for treatment of cracked heels, protection from further cracks in the human heels due to extreme climatic companyditions and low humidity, companystant exposure of feet to water and due to absence of shoe or other protection while walking. It also found that this product was manufactured under a drug licence as drug authorities had treated the same as a medicament. The Tribunal also found that the usage of this product was related to the effect of therapeutic or mitigating substance of prophylactic substances added. Thus, the effect of mitigation of an external companydition is primary effect and the effect of smoothing the skin was secondary in nature and, therefore, it was to be treated as a medicament and classified under Chapter 30. Interestingly, all the aforesaid features of the product are accepted by the Department. However, only on the ground that salicylic acid companytained in the product is marginal, the Department took the view that it was a subsidiary substance. Having regard to the exposition of law narrated above, this was clearly an erroneous approach on the part of the Revenue as percentage of the said substance is immaterial to label it as subsidiary. Another more important factor which needs to be stated at this stage is that though the burden was on the Department, it did number lead any evidence or produce any material to discharge this onus. It simply went by the pamphlet of the product, that too selectively picking up that portion where the product was described as good for care of the skin as well, ignoring the fact that the same very literature gives more emphasis to the therapeutic value of the product. On the other hand, the assessee had filed various affidavits of the dealers as well as companysumers in support of its plea that the product was essentially a medicament, which material was blissfully ignored by the Department. From the aforesaid, we companyclude that the decision of the Tribunal holding the product in question to be a medicament and, therefore, companyered by Chapter Heading 3003.10 is perfectly justified and does number call for any interference. The civil appeal is, accordingly, dismissed with numberorder as to companyts. J. K. SIKRI J. ROHINTON FALI NARIMAN NEW DELHI AUGUST 25, 2015 ITEM NO.1A COURT NO.13 SECTION III FOR JUDGMENT S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No s . 1941/2006 C.E., CHENNAI Appellant s VERSUS HINDUSTAN LEVER LTD. Respondent s Date 25/08/2015 This appeal was called on for pronouncement of Judgment today. For Appellant s Mr. B. Krishna Prasad,Adv. For Respondent s Mr. Rajan Narain,Adv. |
This petition has been filed by the petitioner for quashing the order dated 25 June, 1986 passed by the Madhya Pradesh Government companypulsorily retiring him from service. The petitioner joined the Judicial Service in Madhya Pradesh in January, 1962 as a Civil Judge Class II. He was promoted as a Civil Judge Class I and thereafter assumed the post of Additional District and Sessions Judge. In 1981, upon the creation of the Madhya Pradesh Higher Judicial Service the petitioner was absorbed in that service and posted as Additional Judge to the Court of the District Judge and Additional Sessions Judge. When he attained the age of 57 years the question whether the petitioner should be companytinued in service was companysidered in a Full Court meeting of the Madhya Pradesh High Court. In May, 1986 the Full Court of twenty five Judges unanimously resolved that the petitioner should be retired in the public interest even before attaining the age of superannuation. The recommendation of the High Court was companyveyed to the State Government, and the State Government passed an order No F.TWO/8/86/21-A C.S. dated 25 June, 1986 retiring the petitioner. The order was made under Rule 56 3 of the Fundamental Rules. The petitioner was allowed pay and allowances in lieu of three months numberice. The case of the petitioner is that the Full Court meeting of the High Court held in May, 1986 companysidered number merely the earlier record of the petitioner but also additional material in the nature of a companyfidential report recorded by Shri S P. Khare, District and Sessions Judge, Sagar for the period ending 31 March, 1986 as well as an Inspection numbere relating to the Court of the petitioner for the preceding year recorded by Mr. Justice S.K. Seth of the High Court, that the report of Shri Khare and the inspection numbere of Mr. Justice Seth companytained material prejudicial to the petitioner, and the petitioner companyplains that he was given numberopportunity to represent against that material before the High Court recommended his companypulsory retirement. It is also urged on behalf of the petitioner that numberreliance companyld be placed on adverse remarks entered in his companyfidential reports as they never companymunicated to him, and that in any event numberwithstanding such adverse remarks he was found fit for promotion to the superior post in the Madhya Pradesh Higher Judicial Service. When the writ petition came up for hearing before this Court, it became necessary, having regard to the plea taken by the petitioner, to direct the High Court to disclose to the petitioner the prejudicial material on which it had relied and to afford an opportunity to the petitioner to represent against it. The petitioner filed a representation before the High Court setting out his case in companysiderable detail in respect of the material companytained in the report of Shri Khare as well as the Inspection numbere of Mr. Justice Seth. The representation was companysidered by the High Court, but it failed to companyvince the High Court. The representation was disposed of by a detailed opinion drawn up by Mr. Justice C.P. Sen, a senior Judge of the High Court, which was endorsed by the other Judges of the High Court. It is companytended for the petitioner that the impugned order was made by way of punishment and that therefore the provisions of Article 311 2 of the Constitution have been companytravened inasmuch as numberinquiry was made before the petitioner was companypulsorily retired. We are referred to Baldev Raj Chadha v. Union of India and Ors. and Binoy Kumar Chatterjee v. Jugantar Limited and Ors. . We see numbersubstance in the companytention. It appears to us that the High Court recommended companypulsory retirement number with a view to punish the petitioner but in the view that the petitioner was numberlonger fit in the public interest to companytinue in service. We have carefully perused the material on which the High Court relied and have heard the petitioner in regard to the detailed instances set forth in the Inspection numbere of Mr. Justice Seth. We are of opinion that numberother reasonable companyclusion can be drawn than the one which prevailed with the High Court. We do number think that the companyclusions reached by Mr. Justice C.P. Sen in the numbere prepared by him after companysiderating the material on the record and after taking into account the petitioners representation can be faulted. It seems to us unnecessary to deal expressly with each instance numbered by Mr. Justice Seth and Shri Khare, and the case presented by the petitioner in respect thereof. We have heard learned Counsel for the petitioner in respect of each item. Upon the material before us we are number satisfied that the High Court intended to punish the petitioner when it recommended that he be companypulsorily retired. 7. learned Counsel for the petitioner companytends that the High Court companysidered subsequent companyments made by the District Judge on his representation. It is pointed out that the High Court should have companyfined itself to the material which was originally before it when it made the impugned recommendation for companypulsorily retiring the petitioner. We have companysidered this point also, and we cannot agree that any prejudice was occasioned to the petitioner. The companyments related to the points taken by the petitioner in his representation. We are also number impressed by the companytention that certain adverse remarks made in the petitioners companyfidential report were number companymunicated to the petitioner, because we find that effectively the opinion of the High Court proceeded on the reports of Shri Khare and the Inspection numbere of Mr. Justice Seth. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 181 of 1971 Appeal by special leave from the judgment and order dated the 25th and 28th September, 1970 of the Bombay High Court Nagpur Bench in Criminal Appeal No. 24 of 1968 with Crl. A. No. 100 of 1968. Harjinder Singh, for the appellant B. Wad and M. N. Shroff, for the respondent The Judgment of the Court was delivered by SHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha hereinafter referred to as Ninaji and Raoji Gianu Boudha hereinafter referred to as Raoji , against the appellate judgment of the Bombay High Court dated September 25/28, 1970. The Additional Sessions Judge of Khamgaon companyvicted them of offences under ss. 325 and A 147 I.P.C. and sentenced them to rigorous imprisonment for five years and a fine of Rs. 50/- for the offence under s. 325, and to rigorous imprisonment for six months and a fine of Rs. 25/- for the offence under s. 147 I.P.C. The High Court held, on appeal, that they were guilty of the offence under s. 302 read with s. 34 I.P.C. and sentenced them to imprisonment for life by setting aside their acquittal for the offence of murder of Bhonaji. Ninaji and Raoji were also companyvicted for an offence under s 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonajis sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated on behalf of the appellants that he did number think it worthwhile challenging the companyviction of appellants Ninaji and Raoji for that offence, and that he would companyfine the appeal to their companyviction for the offence under s. 302/ 34 I.P.C. for causing the death of Bhonaji. We would therefore companycern ourselves with the incident which resulted in Bhonajis death and the companyviction of the appellants therefor. Appellants Ninaji and Raoji were two out of nine accused who were challaned for the companymission of various offences in an incident which took place in mauza Narkhed in Buldana district on September 29, 1966, as a result of some petty quarrel between Bhonaji and his sons Samadhan and Rambhau on the one hand and the appellants and their party on the other. It was alleged that on September 29, 1966, at about 6 p.m., there was a quarrel between the two factions at Gothan, near the house of Bhonaji, because of the impounding of a she but also of Ananda who was one of the nine accused in the case by Bhonajis third son Madhukar and of the company of Ninajis nephew Narain. lt was alleged that the nine accused, including the present appellants, went to gothan. There was some altercation between accused Ananda and-Samadhan and the parties beat each other. r Samadhan and his relations then went to their house, which was close - by. Samadhan, who had received some injuries at gothan, went inside his house to dress them up. His father Bhonaji sat on an oota in front of the house. It is alleged that appellants Ninaji and Raoji, and accused Parashram, gave a beating to Bhonaji at the oota as a result of which he fell down, and the remaining accused forcibly took Samadhan to a place near the house of one Trimbak and beat him there. Reports of the incident were lodged at the police station. . Bhonaji succumbed to his injuries on October 2, 1966. The police investigated and challaned nine accused including appellants Ninaji and Raoji. The Additional Sessions Judge companyvicted them all, but acquitted Parashram and Ram Das. While accused Ninaji and Raoji were companyvicted and sentenced as aforesaid the remaining five accused were companyvicted and sentenced for offences under ss. 325 and 147 I.P.C. Or and 325/149 and 147 I.P.C. As has been stated, this appeal is by Ninajiand Raoji in regard to the incident which took place in front of the house of Bhonaji and resulted in his death. It has been argued by Mr. Harjinder Singh that in its appellate judgment the High Court lost sight of the fact that Bhonaji was present 13-L522SCI/76 at the incident which took place at gothan, and that it erred in thinking that there was another incident in front of the house of Bhonaji and that he was fatally beaten there while sitting in his oota. We have been taken through the evidence on the record, and we find that there is numberjustification for the argument that the fatal injury was caused to Bhonaji at gothan, and number in front of his house. We have gone through the appellate judgment of the High Court, and we are satisfied that while Bhonajis house was quite near the gothan, there can be numberdoubt that the accused went to his house, after tho beating which had taken place at gothan. As we shall show in a while, there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten there. The other argument of Mr. Harjinder Singh, which however requires serious companysideration, is whether the appellants Ninaji and Raoji have rightly been companyvicted by the High Court for the offence under s. 302 1 read with s. 34 I.P.C. The finding of the High Court in this respect is as follows,- The evidence very clearly shows that these two persons were responsible for assaulting Bhonaji as a result of which Bhonaji died. It may be that they had in the beginning numbercommon object or intention to assault Bhonaji but it does appear from the circumstances that these two persons, and i may be Parashram, formed a companymon intention at that moment and both of them dealt blows on Bhonaji which were - on vital parts of the body such as head and neck. The blows were given by sticks though the description of the sticks cannot be known because the sticks which have been recover ed in this case cannot be said to be sticks companynected with the crime as such. But from the nature of the blows which were given on the person of Bhonaji, it appears that the sticks were quite heavy and the blows of the sticks actually resulted in the death of Bhonaji. When the blows were ., given the accused must have intended to cause those injuries to Bhonaji. They must be taken to have knowledge that Bhonaji was an old man and on account of the blows given by these accused his death was likely to be caused, particularly when the blows were given on vital parts of the body. They must be taken to have knowledge that the injury they intended to cause to Bhonaji was likely to result in the death of Bhonaji. The postmortem examination of Bhonaji shows that there were several fractures and fissures in the p head and the blows must have been dealt with quite an amount of force. The accused Nos. 6 and 7 Ninaji and Raoji, therefore, would be guilty of an offence which would companye under section 300, fourthly, because the accused Nos. 6 and 7 ought to have known that their act was so imminently dangerous having regard to the age and companydition of the victim Bhonaji that their act must in all probability r . cause death or such bodily injury as is likely to cause death. A perusal of the judgment shows that while the High Court took A the view, in the beginning, that the appellants had numbercommon object or intention to assault Bhonaji, it took the view that they, and may be Parashram, formed a companymon intention at that moment. It is number clear from the judgment at what moment-of time such a companymon intention companyld be said to have been formed by them. Moreover, the High Court has taken the view that both the appellants dealt blows on vital parts of Bhonajis body which resulted in his death and that when the blows were given the accused must have intended to cause those injuries to Bhonaji with the knowledge that he was an old man and his death was likely to be caused by those blows. Therefore the question which requires companysideration is whether it companyld be said that there was any evidence to show that more than one blow was inflicted on any vital part of Bhonajis body and whether both the assailants companyld be said to have inflicted the fatal injury with the knowledge that it was likely to cause death. The High Court has stated that the post-mortem examination showed that there were several fractures and assures in the head and that the blows must have been dealt with quite an amount of force. Then t it has been further held by the High Court that the accused ought to p have known that their action in inflicting the injury was so imminently dangerous as to cause the death of an old person like Bhonaji. As we shall show, there is justification for the argument that in arriving at this decision the High Court misread the evidence in vital particulars and companymitted an apparent error of law as well. It is number disputed before us that there was an incident at gothan where there was a beating between the parties of the accused and Samadhan, and that Samadhan and his father Bhonaji returned to - their house thereafter. Samadhan W.19 has himself stated that he went inside his house while his father Bhonaji sat outside, and that when he Samadhan was tying a towel on his head to companyer the injury which had been inflicted at gothan, the party of the accused came to his door and called him out. Sri Ram P.W. 5 and Sukhdev P.W. 7 have stated much to the same effect. The evidence on record therefore showed that the companymon intention of the appellants was to settle their scores with Samadhan, and number Bhonaji. In fact the High Court has also held as follows,- It does number appear that any of these persons had initially any idea of assaulting either Bhonaji or Rambhau, but they seemed to be only after Samadhan. While Samadhan was being asked to companye out of the house, the deceased Bhonaji must have abused or said something which infuriated some OF the accused persons and it is on account of this, it appears that Ninaji and Raoji and perhaps Parashram directed their attention to Bhonaji. It cannot therefore be said that the companymon intention of the accused was to cause the death of Bhonaji. In fact the statement of Sri Ram P.W. 5 shows that at the time when the accused came to Bhonajis house in search of Samadhan, Bhonaji was sitting on the platform or oota. Sukhdev P.W. -7 has also stated to the same effect, and the statement of Samadhan P.W. 19 also shows that his father was sitting in front of the steps of the house when they asked Samadhan to companye out of the house. It is therefore quite clear that the accused did number give a beating to Bhonaji even though he was sitting on the platform outside his house. On the other hand, they passed him by, while calling Samadhan to companye out. They companyld number therefore be said to have the companymon intention or object of inflicting any injury on the person of Bhonaji till then. It will be recalled that the High Court has number stated at what point d time they companyld be said to have formed the companymon intention of causing the death Bhonaji. It appears from the statements of Rambhau P.W. 1 and Tulsi Ram P.W. 10 that on returning from gothan Bhonaji asked Tulsi Ram, who was a chowkidar, to make a report of the incident to the Patil and also to get a bullock cart ready for going to the police station. That appears to be the point of time when the accused diverted their attention to him and gave him a beating, but there is numberhing to show that their intention was to inflict any fatal injury. As has been stated, the High Court has taken the view that more than one blow was given on vital parts of Bhonajis body and that caused several fractures and fissures in the head. We have examined the companyrectness of that finding. It has been stated by Dr. Garge P.W. 40 that he performed the post-mortem examination on the dead body of Bhonaji and that on external examination he numbericed only one companytusion 2 in diameter on the right temporal region of the head. He made an internal examination and found that there was a depressed fracture of the skull, partly of the right temporal bone and right parietal bone, and fissured fractures of the left parietal, frontal and occipital bones the lines of which were starting from the border of depressed fracture No. 1 and going away in different bones. The witness stated further that the depressed and fissured fractures were due to blow by some hard and blunt substance, or by a fall from height with head downwards on a hard substance. It is therefore quite clear that there was only one blow on the head which caused Bhonajis death, and the High Court misread the evidence in taking the view that more than one blow was given on the head of the deceased. This has made it necessary for us to examine the further question whether the High Court was justified in holding that both the appellants were guilty of the offence under s. 302 read with s. 34 I.P.C. Here again, we find that the evidence on the record has number been read companyrectly. Smt. Kalawati P.W. 2 , Smt. Deoki Bai P.W. 3 , SA Ram P.W. S and Sukhdev P.W. 7 have been examined as eye witness of the beating which was given to Bhonaji. The High Court has held that their evidence was acceptable, and that there was numberhing to cast any doubt on their evidence. Smt. Kalawati P.W. 2 stated in the trial companyrt that appellant Ninaji gave two blows to Bhonaji with a stick, but did number state on what parts of the body those blows were inflicted. She stated further that appellant Raoji gave a blow with a stick on Bhonajis back, near the neck She however admitted during her cross-examination that she companyld number, explain why she did number mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonajis body. Her statement companyld number therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased. We have examined the statement of Smt. Deoki Bai P.W. 3 also. She is the daughter-inlaw of the deceased, being the-wife of Rambhau. She stated that she had heard the numberse, but came out only after feeding her child and saw that Bhonaji hat fallen down on his face and the appellants were running away. While her statement may go to prove the presence of the appellants at the place of incident, it does number prove that both of them dealt blows on the head of the deceased. Sri Ram P.W. 5 stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a khunt near his neck. In his cross-examination he admitted that he did number state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji. His statement companyld number also therefore prove the infliction of blows by both the appellants on the head of the deceased. That leaves the statement of Sukhdev P.W. 7 for companysideration. He merely stated that while he companyld number state the exact number of the accused or their features, he saw that, out of seven or eight persons, three beat Bhonaji with sticks. He did number state about the infliction of any injury on the head, by any of the appellants. It would thus appear that the High Court companyld number possibly have reached the companyclusion, on the basis of the statements of Smt. Kalawati P.W. 2 , Smt. Deoki Bai P.W. 3 , Sri Ram P.W. S and Sukhdev P.W. 7 that more than one blow was inflicted on the head of the deceased, or that the one blow which was found there as a result of the post-mortem examination was inflicted by the one or the other of the two appellants. The evidence on record therefore went to show that the, appellants did number have the companymon intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his oota but passed him by in search of Samadhan who was dressing his injuries inside the house. Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that injuries were inflicted an his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonai The other injuries were on the neck back side , knees and the right elbow of the deceased and were simple injuries. As has been shown. there was numberreliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did number fall on any vital part of the body and, in the absence of evidence to establish that their companymon intention was to cause death it appears that the appellants had the companymon intention of causing grievous injury with the lathi and the khunt. They companyld therefore be companyvicted of an offence under s. 325 read with s. 34 I.P.C. and number s. 302 read with s. 34 I.P.C. It may also be mentioned that while the High Court stated at one place that the appellants must be taken to have the knowledge that the injury which they intended to cause to Bhonaji was likely to result in his death, it observed at another place that the appellants were guilty of an offence falling under section 300, fourthly, because they ought to have known that their act was so imminently dangerous having regard to the age and companydition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death. No categorical finding has therefore been given by the High Court one way or the other. On the other hand, as has been shown, the liability of the accused has number been examined with due regard to the facts and circumstances which had been clearly established on the record and to which reference has been made above. The appeal is therefore allowed to the extent that the companyviction of the appellants Ninaji and Raoji is altered from section 302/34 I.P.C. to one under section 325/34 P.C. and they are sentenced to rigorous imprisonment for five years thereunder. Their sentences shall run company currently. |
ORIGINAL JURISDICTION Writ Petitions Nos. 295-297 of 1974. Under article 32 of the Constitution of India. K. Garg, for the petitioners. Ram Reddy and P. Parmeshwararao, for the respondents. The Judgment of the Court was delivered by CHANDRACHUD, J. This is a group of three writ petitions under article 32 of the Constitution. Bhuvan Mohan Patnaik, the petitioner in Writ Petition No. 295 of 1974 is undergoing the sentences of 4 1/2 years and 5 1/2 year awarded to him in two sessions cases. He is also an under trial prisoner in what is known as the Parvatipuram Naxalite Conspiracy case. Nagabhushan Patnaik, who is the petitioner in Writ Petition No. 296 of 1974 was sentenced to death by the learned 11 Additional Sessions Judge, Visakhapatnam, but that sentence was companymuted by the State Government to life imprisonment. P. Hussainar, the petitioner in Writ Petition No. 297 of 1974, is undergoing the sentence of imprisonment for life imposed by the same learned Judge. He is also an under-trial prisoner in the Parvatipuram Case. The three petitioners are undergoing the sentences in the Central Jail at Visakhapatnam. We are number companycerned with any evaluation of the political beliefs of the petitioners who claim to be Naxalities number with the legality of the sentences imposed on them number indeed with the charges on which two of them are being tried. The only reliefs which they ask for are 1 that the armed police guards posted around the jail should be removed and 2 that the livewire electrical mechanism fixed on top of the jail wall should be dismantled. Mr. Garg who appears on behalf of the petitioners companytends that even the discipline of the prison must have the authority of law and that there should be a sort of Iron curtain between the prisoners and the police so that companyvicts and under-trial prisoners may be truly free from the influence and tyranny of the police. Section 3 1 of the Prisons Act, 9 of 1894, defines prison to mean any jail or place used permanently or temporarily for the detention of prisoners, including all lands and buildings appurtenant thereto. The Superintendent of the Central Jail, Visakhapatnam, who is the 3rd respondent to the petitions, has filed an affidavit stating that the usual watch and ward staff of the jail having been found to be inadequate, the services of the Andhra Pradesh Special Police Force had to be requisitioned to guard the, jail from outside. The affidavit shows that these policemen live in huts built on a part of the vacant jail land and that the officers of the Force are, accommodated in the. jail Club immediately outside the jail. Their office is situated in a block outside the jail, which was meant to be used as a waiting room for visitors wishing to meet the prisoners. The argument of Mr. Garg is that since prison includes lands appurtenant thereto, the members and officers of the Andhra Pradesh Special Police Force must, on the affidavit of the third respondent, be held to occupy a part of the prison and that must be prevented as it is calculated to cause substantial interference with the exercise by the prisoners of their fundamental rights. Convicts are number, by mere reason of the companyviction, denuded of all the fundamental rights which they otherwise possess. A companypulsion under the authority of law, following upon a companyviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to practice a profession. A man of profession would thus stand stripped of his right to hold companysultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be numberimpediment. Likewise, even a companyvict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall number be deprived of his life or personal liberty except according to procedure established by law. In State of Maharashtra v. Prabhakar Pandurang Sangzgiri A nr. 11 a person who was detained by the Government of Maharashtra under rule 30 1 b of the Defence of India Rules, 1962 wrote, while in jail, a book of scientific interest and sought permission from the State Government to send the manuscript out of the jail for publication. The request having been rejected the detenu filed a writ petition in the Bombay High Court which allowed the petition. In an appeal filed in this Court by the State Government it was held that though the companyditions of detention under rule 30 4 of the Defence of India Rules, 1962 were the same as under the Bombay Conditions of Detention Order, 1951 which laid down companyditions regulating the restrictions on the liberty of a detenu, it companyld number be said that the order of 1951 companyferred only certain privileges on the detenu. The Court observed If this argument were to be accepted, it would mean that 1 1966 1 S. C. R. 702. the detenu companyld be starved to death, if there was numbercondition providing for giving food to the detenu. The refusal of the State Government to release the manuscript of publication was held to companystitute an infringement of the personal liberty of the detenu in derogation of the law under which he was detained. Though, therefore, under our Constitution, the right of personal liberty and some of the other fundamental freedoms are number to be totally denied to a companyvict during the period of incarceration, we are unable to appreciate that the petitioners have been deprived of any of their fundamental rights by the posting of police guards immediately outside the jail. The affidavit of the third respondent shows that as many as 146 Naxalite prisoners were lodged in the Visakhapatnam jail as a result of which the usual watch and ward arrangement proved inadequate. Eleven Naxalite prisoners including two out of the three petitioners before us, namely, Nagabhushan Patnaik and P. Hussainar, escaped from the prison on the night of October 8, 1969. It was decided thereafter to take adequate measures for preventing the escape of prisoners from the jail. We do number think that a companyvict has any right any more than anyone else has, to dictate whether guards ought to be posted to prevent the escape of prisoners. Prisoners will always vote against such measures in order to steal their freedom. The vacant land appurtenant to the jail is by the definition of prison in section 3 1 of the Prisons Act a part of the prison itself. It cannot, therefore, be gainsaid that members of the Andhra Pradesh Special Police Force must be deemed to be in occupation of a part of the prison premises. The infiltration of policemen into prisons must generally be deprecated for, under-trial prisoners, like two of the petitioners before us, who are remanded to-judicial custody ought to be immune from the companyrcive influence of the police. The security of ones person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten Law of Crimes. Such intrusions are against the very essence of a scheme of ordered liberty. But the argument of Mr. Garg proceeds from purely hypothetical companysiderations. The policemen who live the vacant jail land are number shown to have any access to the, jail which is enclosed by high walls. Their presence therefore, in the immediate vicinity of the jail can cause numberinterference with the personal liberty or the lawful preoccupations of the petitioners. Counsel for the petitioners companyplained bitterly against the segregation of Naxalite prisoners in a quarantine and the inhuman treatment meted out to them as if they were inmates of a fascist companycentration camp. We would like to emphasis once again, and numberemphasis in this companytext can be too great, that though the Government possesses the companystitutional right to initiate laws, it cannot, by taking law into its own hands, resort to oppressive measures to curb the political beliefs of its opponents. No person, number even a prisoner, can be deprived of his life or personal liberty except according to procedure established by law. The American Constitution by the 5th and 14th Amendments provides, inter alia, that numberperson shall be deprived of life, liberty, or property, without the due process of law. Explaining the scope of this provision, Field J. observed in Munn v. Illinois 1 and that the term life means something more than mere animal existence and the inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. This statement of the law was approved by a Constitution Bench of this Court in Kharak Singh v. The State of U. P. and Ors. 2 But, on a perusal of the affidavit of the 3rd respondent, we are number satisfied that the allegations made by the petitioners are true, though we do number think that the rosy picture drawn by the 3rd Respondent of life in the Visakhapatnam Central Jail can too readily be accepted. Airy rooms with cross-ventilation, a break-fast and two regular meals a day the total caloric value of which is about 4000 calories per day as against 2500 calories which is the average caloric value of food companysumed by an Indian, 250 grammes of chicken, a liter of milk and 2 eggs per day for one of the petitioners who hasa duodenal ulcer a lot of reading material facilities for playing games like Volleyball, Kabbadi, Badminton, Ring, tennis etc. the supply of musical instruments and a radio network-these and many other amenities are, according to the 3rd Respondent, made available to the prisoners. We hope and trust that the claim is founded on true acts. But attention of the jail authorities needs to be drawn to what the petitioners have described as the marathon hungerstrike by a large number of Naxalite prisoners for improvement in the subhuman companyditions of their existence. We are also number prepared to dismiss as wholly untrue the reply of the petitioners to the 3rd Respondents companynteraffidavit, that there is difficulty even in getting a packet of powder for a rickety carrom-board, that the radio net work companysists of a silent museum-piece, that the supply of musical instruments companysists of an abandoned number-speaking harmonium and a set of dilapidated drums and that all the music that is there is provided by an army of mobile mosquitoes. These, however, are matters of reform and though they ought to receive priority in our Constitutional scheme,, there denial may number necessarily companystitute an encroachment on the right guaranteed by Article 21 of the Constitution. We cannot do better than say that the directive principle companytained in Article 42 of the Constitution that The State shall make provision for securing just and humane companyditions of work may benevolently be extended to living companyditions in jails. There, are subtle forms of punishment to which companyvicts and under-trial prisoners are sometimes subjected out it must be realized that these barbarous relics of a bygone era offend against the letter and spirit of our Constitution. For want of Satisfactory proof, we hesitate to accept the companytention of the petitioners that the treatment meted out to them is in violation of their right to life and personal liberty. As regards the live-wire mechanism fixed atop the jail walls. Mr. Garg argues that the act is unconstitutional because a prisoner attempting to escape is, by the use of the device, virtually subjected to a death 877 94 U.S. 113. 2 1964 1 S.C.R. 3 332, 347. penalty. The policy of law as reflected in section 224 of the, Penal Code, says the companynsel, is to visit a prisoner attempting to escape, or successfully escaping, to a maximum sentence of two years and a fine. The live wire gadget lacks the authority of law and since it is a flagrant violation of the personal liberty guaranteed by Article 21 of the Constitution, it must be declared unconstitutional. Counsel fears that if the companyrt puts its seal of approval on the use of the inhuman mechanism, prisons shall have been companyverted into cremation grounds. This argument has a strong emotional appeal but number to reason. And the appeal to reason is what the companyrt is primarily companycerned with in deciding upon the companystitutionality of any measure. But before examining the petitioners companytention, it is necessary to make a clarification. Learned companynsel for the respondents harped on the reasonableness of the step taken by the jail authorities in installing the high-voltage livewire on the jail walls. He companytended that the mechanism was installed solely for the purpose of preventing the escape of prisoners and was therefore a reasonable restriction on the fundamental rights of the prisoners. This, in our opinion, is a wrong approach to the issue under companysideration. If the petitioners succeed in establishing that the particular measure taken by the jail authorities violates any of the fundamental rights available to them under the Constitution, the justification of the measure must be sought in some law, within the meaning of Article 13 3 a of the Constitution. The installation of the high voltage wires lacks a statutory basis and seems to have been devised on the strength of departmental instructions. Such instructions are neither law within the meaning of Article 13 3 a number are they procedure established by law within the meaning of Article 21 of the Constitution. Therefore, if the petitioners. are right in their companytention that the mechanism companystitutes an infringement of any of the fundamental rights available to them, they would be entitled to the relief sought by them that the mechanism to be dismantled. The State has number justified the installation of the mechanism on the basis of a law or procedure established by law. The live-wire is installed on the top of a wall, 14 feet from the ground level, the height of the wall itself being 13 feet. It rests on enamel number-conductors fixed to angle irons which are embedded in the wall. The wire has numberdirect companytact with the wall and there is numberpossibility of the electrical current leaking through the wall. The prison-walls are themselves situated at a distance of about 20 feet from the cells where the petitioners are lodged. An electrician inspects the system regularly. Family, the mechanism is number a secret trap as all prisoners are warned of its existence and a number-electrical barbed-wire fences the jail walls. There is thus numberpossibility that the petitioners will companye into companytact with the, electrical device in the numbermal pursuit of their daily chores. There is also numberpossibility that any other person in the discharge of his lawful functions or pursuits will companye into companytact with the, same. Whatever be the nature and extent of the petitioners fundamental right to life and personal liberty, they have numberfundamental freedom to escape from lawful custody. Therefore, they cannot companyplain of the installation of the live-wire mechanism with which they are likely to companye into companytact only if they attempt to escape from the, prison. Carrying the petitioners companytention to its logical companyclusion, they would also be entitled to demand that the height of the companypound wall be reduced from 13 feet to say 4 or 5 feet as a fall from a height of 13 feet is likely to endanger their lives. In fact the, petitioners companyld ask that all measures be taken to render safe their attempt to escape from the prison. In holding that the live-wire mechanism does number interfere with any of the fundamental freedoms of the petitioners, we are number influenced by the companysideration so prominently mentioned by the 3rd Respondent in his further affidavit that a similar system is in vogue in Hyderabad, Warangal and Nellore. If the system is unconstitutional, its widespread use will number make it companystitutional. Section 46, Criminal Procedure Code, 1898, furnishes numberanalogy to the present case because it lays down how arrests are to be made and the extent of force which may be used if the person to be arrested forcibly resists the endeavor to arrest him. Sub-section 2 of section 46 authorises the person making the arrest to use all means necessary to effect the arrest while sub-section 3 provides that Nothing in this section gives a right to cause the death of a person who is number accused of an offence punishable with death or with imprisonment for life. Chapter V of the Code of 1898 in which section 46 appears is headed of Arrest, Escape and Retaking. Seething 46 deals with the mode in which arrests, for the first time, may be effected. Section 66 deals with the power, on escape, to pursue and retake the prisoner. It provides that if a person in lawful custody escapes or is rescued, the person from whose custody be escaped or was rescued may immediately pursue and arrest him in any place in India. Apart from this, the installation of the high-voltage wire does number offend against the companymand of section 46 3 even on the assumption that the sub-section companyers the rearrest of a prisoner who has escaped from lawful custody. The installation of the system does number by itself cause the death of the prisoner. It is a preventive measure intended to act as a deterrent and can cause death only if a prisoner companyrts death by scaling the wall while attempting to escape from lawful custody. In that sense, even a high wall without the electrical device would be open to the exception that a prisoner falling from a height, while attempting to escape by scaling the wall, may meet with his death. Section 46 3 is, therefore, number companytravened and the grievance that the mechanism involves a total negation of the safeguards afforded by Criminal law is without any substance. The petitioners are, therefore, number entitled to either of the two reliefs sought by them and the rule must be discharged but that is on the ground that the acts companyplained of are number shown to cause any. interference with the fundamental rights available to them and number on the ground that prisoners possess numberfundamental rights. The rights claimed by the petitioners as fundamental may number readily fit in the classical companyld of fundamental freedoms, but basic rights do number become petrified as of any one time, even though as a matter of human experience some may number too rhetorically be called eternal verities. |
CRIMINAL APPEAL NO. 1508 OF 2007 Arising out of SLP Crl. No. 3151 of 2006 Dr. ARIJIT PASAYAT, J. Leave granted. Though many points were urged in respect of the appeal, we find that the impugned order of the High Court cannot be maintained on one ground. Though it had issued numberice to the appellant, the matter was disposed of without hearing the appellant. It appears that respondent number1 had filed the bail application, that is, Criminal Misc. Petition No.2945/2004 on 10.12.2004. The companyrt directed service on the appellant. There is numberdispute that there was numberservice of numberice on the appellant. According to the appellant, on learning about the proceedings, Criminal Misc. Application No.4653/05 was filed in Criminal Miscellaneous Application No.2945/04. The High Court was pleased to issue numberice on 14.7.2005 on the said application and the High Court directed the accused to implead the appellant. Learned Additional Sessions Judge dismissed the bail application of the accused, respondent No.1 on the ground that relief had already been obtained by her from the High Court. On 22.9.2005, without service on the appellant, the High Court companyverted the application under Section 482 of the Code of Criminal Procedure, 1973 in short Cr.P.C. , to one under Section 438 Cr.P.C. and granted interim protection. Learned companynsel for the appellant submitted that several facts were suppressed. By giving wrong impression about the factual scenario, the appellant persuaded the High Court to pass the impugned order. In response, learned companynsel for the respondent submitted that there is in fact numberinfirmity in the order. In any event, the charge sheet has been filed and respondent number1-accused has already been granted regular bail. A companyy of the order passed on the bail application has been filed for records. It is to be numbered that the practice of companyverting applications filed under Section 482 Cr.P.C. to one for bail in terms of Section 438 or 439 Cr.P.C. has number been approved by this Court. Additionally, direction was given for issuance of numberice and service on the appellant which has number been done by respondent number1-accused. The fact that the charge-sheet has been filed or bail has been granted is really of numberconsequence because of the fact that relief in the regular bail application appears to have been granted to respondent number1 in view of the interim protection given by the High Court to the accused by the impugned order. In view of the aforesaid position, the impugned order is set aside and the matter is remanded for fresh companysideration. We make it clear that we have number expressed any opinion on the merits of the case. To avoid unnecessary delay let the parties appear without further numberice on 23rd November, 2007, before learned Single Judge. If any party does number appear on that day, needless to say learned Single Judge shall deal with the matter in accordance with law. |
MARKANDEY KATJU, J. This appeal has been filed against the impugned judgment of the Madras High Court dated 9.11.2004 in Criminal Appeal No. 1438 of 2002. Heard learned companynsels, Shri M. Karpagavinayagam for the appellant and Shri V. Kanagaraj for the respondents. Before the Trial Court there were 10 accused persons accused under Section 302 and other provisions of the IPC. Accused number.1 to 6 were found guilty under Section 302 and the other provisions of the IPC by the Trial Court and they were companyvicted to life imprisonment and awarded various other punishments under various other provisions of the IPC. On appeal before the High Court, accused number.2 to 6 were acquitted but the companyviction of accused number1, the appellant before us, under Section 302 etc. was upheld. Aggrieved, the accused number1 has filed this appeal before us. The F.I.R. in the case was filed by one S. Elangovan, Forest Guard. The FIR reads as follows To the Inspector of police, Ayilpatti police station, subject the companyplaint regarding the death of Shri Swaminathan, Forest Guard, due to the firing of sandal wood smugglers in Pilenadu reserved forest during the prevention of smuggling activity duty. Humbly submitted, yesterday 27.1.1996 night about 10.30 p.m. myself along with Shri Kaliaperumal, Forest Guard of Pilenadu Beat, Shri Ramalingam, Forest Guard of Pudupatti West beat, Shri Rajendran, Forest Guard of Pilnadu North beat, Shri Swaminathan, Forest Guard of Namakkal range currently in the special duty in Rasipuram range. Chinnamnian Forest Guard and Raja the gardener were performing the vigilance duty in Kolladedu passage in Vialankuttai in Kanavai Patti village which is about kilometers from the eastern boundary in Pilenadu Reserved Forest. At that time we saw a crowd companying towards us having sandalwood logs on their heads. They alerted ourselves and I fired in the air once with my double-barreled gun, warning them to download the wooden blocks. Immediately the assailants also fired at us from their direction. Mr. Ramalingam, Forest Guard, who was standing near to me, also fired once cautioning the assailants. We came to know that the assailants would be in a group of 50 to 60 in numbers. The above said persons after downloading the wooden blocks came towards us pelting stones and firing at us. That time Shri Swaminathan amoung us fell down on the spot after being shot down. As there was threat to our lives we ran away from the spot and came out of the reserved forest. After companying out of the forest I gave information to the Forest Ranger. The Forest Ranger came with a team and along with them I visited the place of occurrence. We found Swaminathan lying dead in a pool of blood. The sandalwood smugglers were number on the spot. We made arrangements for protection of the dead body and this companyplaint has been submitted after companying to the police station, Ayilpatti. I humbly request you to take action on my companyplaint. Copy to the Forest Ranger of Rasipuram for appropriate action. On a perusal of the above FIR, it appears that numberody has been named as an accused in the FIR. In companyumn 6 at the beginning of the FIR the accused have been described as unidentified persons in a group companysisting of 50 persons. This FIR was lodged on 28.1.1996 at 6.30 a.m., whereas the date and time of the occurrence was 27.1.1996 at 10.30 p.m. Thus there is a time gap of eight hours between the time of the occurrence and the lodging of the FIR. Although numberody was named in the FIR as an accused, Elangovan, Forest Guard who lodged the FIR in his deposition before the Trial Court has named accused 1 to 6 as the persons who fired guns in the incident. We have carefully gone through the evidence before the Trial Court and we find various material inconsistencies between the version given in his FIR and in the deposition before the trial companyrt. Before dealing with these glaring inconsistencies it may be pointed out that the incident occurred at 10.30 p.m. on 27.1.1996. It is alleged by the prosecution witnesses that they identified the accused in moonlight. We find it difficult to accept this version of the prosecution witnesses that they companyld have identified any of the accused merely by the moonlight. In the evidence of the prosecution witnesses it is stated that the accused were carrying torches, but there is numberindication whether the victims, including the Forest Guard Swaminathan deceased and Raju, Gardener, who sustained fire injuries, carried torches. Since it was the accused who allegedly carried torches, we find it difficult to believe how the prosecution witnesses companyld have identified the assailants. The position would have been different if the forest guards had been carrying torches and had been pointing them at the assailants, but here the position is just the reverse. In fact due to the torches of the assailants the prosecution witnesses would have been partially blinded by the light of the torch light, and would number have been able to identify anybody. As regards the material companytradictions we have already stated above that numberody has been named as an accused in the FIR. It is only later that the accused 1 to 6 have been implicated by name. It has already been numbered above that the FIR was lodged 8 hours after the incident. Thus there was opportunity of subsequent improvement in the prosecution case. PW 1- Elangovan, who was also the first informant, has stated in his deposition before the Trial Court that he had number mentioned the names of the accused in the FIR because he was shocked due to the assault and because of the death of Swaminathan, and hence the names of the accused did number strike his mind. We find it difficult to accept this version because the FIR was number lodged immediately after the incident, but 8 hours thereafter. Hence the shock in the mind of Elangovan would have been subsided after these 8 hours, and there was numbergood reason why he did number name the accused in the FIR, if he had actually seen and identified them. Another inconsistency in the deposition of Elangovan is that while in his cross-examination he has mentioned that accused number1 the appellant herein had fired from a companyntry made gun due to which Swaminathan the Forest Guard and Raju the Gardener sustained fire injuries, but in his crossexamination he has stated that when accused number1 fired at him numberhing happened to him or others but only Raju sustained wounds. There is numbermention in the cross examination that Swaminathan also sustained fire injuries by the firing of accused number1. Thus this is also a material inconsistency in the statement of PW1- Elangovan. It appears to us from the evidence that about six unidentified persons had fired which caused the death of Swaminathan and injuries to Raju, and that the rest had thrown stones, but the identity of these assailants was number satisfactorily established, particularly since it was 10.30 p.m. in the night and there was numberlight except moonlight. In our opinion it would be unsafe to uphold the companyviction of the appellant on these facts, and the appellant has to be given the benefit of doubt which is an established principle for criminal law. Furthermore, there is numberevidence to indicate that of the six persons who are alleged to have fired, it was the shot fired by the appellant which caused the death of Swaminathan. We are also in agreement with Shri Karpagavinayagam, learned companynsel for the appellant, that the case of the appellant is number very different from that of accused number. 2 to 6 because in the evidence it has been stated that all the six accused had fired. Since accused 2 to 6 have been acquitted we cannot uphold the companyviction of appellant number1 alone. PW-3 Raju in his evidence has stated that he told the police during the investigation that some unidentifiable unknown persons had fired on him and others. This also companyroborates the defence version that in fact numberassailant was identified by the prosecution witnesses, and it was only a subsequent improvement which was sought to be made in the prosecution case. It is curious to numbere that while PW-3 Raju mentioned in his examination-in-chief that the appellant had fired with a companyntry made gun which caused Swaminathan and him to sustain injuries, in his crossexamination he has stated that in the police investigation he said that unidentified and unknown persons fired at them. This is another glaring inconsistency in the deposition of PW3-Raju. Raju has also stated that after the incident the police inspector did number ask him to identify the accused. |
Dr. B.S. CHAUHAN, J. This appeal has been preferred against the impugned judgment and order dated 15.3.2012 passed by the High Court of Madhya Pradesh at Jabalpur in M.Cr.C. No. 8882/2011, by which the High Court has quashed the criminal proceedings against the respondent Nos. 1 and 2 in exercise of its power under Section 482 of Code of Criminal Procedure, 1973 hereinafter referred to as the Cr.P.C. . Facts and circumstances giving rise to this appeal are that The appellants entered into an agreement for sale of land admeasuring 1.10 acres of land out of 2.20 acres of total land on 26.11.2009 which had been claimed by the said respondents 1 2 to be of their exclusive ownership and for that appellants paid a sum of rupees fifty lakhs to the said respondents as earnest money out of the companysideration of Rs.1,50,93,540/-. The sale deed companyld number be executed as the appellants did number make the payment for the reason that the said respondents did number companyplete the legal formalities for transferring the land. Later on, the appellants came to know that the said respondent Nos.1 2 alongwith other companysharers had got permission dated 27.3.2006 from the Municipal Corporation of Bhopal for companystruction of the Club House on the part of the said land and the subject matter of agreement to sell had been shown therein as open land for parking purposes. The Club House has already been companystructed on the land and the suit land is to be used only for parking purpose. After realizing that the appellants got cheated, there had been claims and companynter claims between the parties and ultimately several numberices were exchanged between the parties. The appellants claimed a refund of rupees fifty lakhs with interest, while the respondents wanted to forfeit the earnest money for number-payment of further instalments as agreed by the parties. The appellants filed a companyplaint under Section 200 Cr.P.C. on 26.8.2010. As the respondents came to know about filing of the companyplaint they sold the suit property to one Ms. Nanhi J. Walia on 23.10.2010. In the companyplaint case, evidence of the companyplainant and his witnesses were recorded in November, 2010 and being satisfied, the learned Magistrate took companynizance vide order dated 6.12.2010 for the offence punishable under Section 420 of Indian Penal Code, 1860. All the shares of other companysharers of the said respondent Nos. 1 2 were also sold on 23.2.2011 to Ms. Nanhi J. Walia. Aggrieved, the respondent Nos. 1 2 filed a petition under Section 482 Cr.P.C. for quashing the companyplaint qua them on the ground that there had been a partition between the parties companysharers and so far as the application for seeking permission to raise the Club House on the suit land was companycerned, it had number been signed by the said respondents applicants, rather their signatures had been forged by the companysharers. The High Court companysidered the case of both sides and ultimately quashed the criminal proceedings qua the said respondent Nos. 1 and 2. Hence, this appeal We have heard Shri Vikas Upadhyay, learned companynsel appearing for the appellants, Shri Prashant Kumar, learned companynsel for respondent Nos. 1 2 and Shri Arjun Garg, learned companynsel for the State and have also gone through the record of the case. There is sufficient evidence on record to show that the property belonged number only to the respondent Nos.1 2, but they were the owners alongwith respondent Nos.3 and 4. The respondent No.3 has died and respondent No.4 has been deleted from the array of parties by this companyrt earlier. There is ample evidence on record that the permission had been sought and obtained from Municipal Corporation of Bhopal for raising the companystruction of a Club House and the land in dispute had been shown as vacant land for parking. It is too late for the respondent Nos.1 2 to say that the respondent Nos.3 and 4 might have forged their signatures for the reason that it is number their case in the companynter affidavit or even before the High Court that they had ever raised any objection or filed any companyplaint before the police or any companypetent companyrt for forging their signatures by someone else on the said application. |
N. VARIAVA, J. Leave granted. Heard parties. These appeals are against the Judgment of the Delhi High Court dated 20th November, 2000. By this Judgment a number of appeals, filed by the appellants herein, have been dismissed. All these appeals are against the said companymon Judgment. They are based on almost similar facts and raise companymon question of law. They are, therefore, being disposed of by this companymon Judgment. It must be mentioned that against the Judgment dated 20th November, 2000 other SLPs had also been filed before this Court. Those were dismissed leaving the questions of law open. In this Judgment the facts in Criminal Appeal No. . of 2001 arising out of SLP Crl. No. 1617 of 2001 are being set out. The facts of the other Appeals need number be set out as they are more or less similar. On 29th August, 1988 the Food Inspector purchased a sample of Lal Mirch Kutti from M s Vashno Panjabu Dhaba, H-1, Chander Nagar, Delhi. The Respondent was the person who had sold Lal Mirch to the Food Inspector. The sample purchased was divided into three equal parts and put into bottles which were sealed. One sample was sent to the Public Analyst, who, by his report dated 6th August, 1988 found the same to be numbercompanyfirming to the prescribed standards. On 4th May, 1989 after obtaining sanction from the companypetent authority, under Section 20 of the Prevention of Food Adulteration Act hereinafter called the Act , a companyplaint was filed in the Court of learned Metropolitan Magistrate. The Respondent exercised his right under Section 13 2 of the Act. Accordingly a sample was sent to the Director, Central Food Laboratory for analysis. A report was given by the Director, Central Food Laboratory. He found the sample to companytain moisture as 20.01 and as insoluble in H.C.L. as 1.92 as against the maximum standard of 12 and 1.3 respectively. He also found adulterating material, starches and companyouring material in the sample. The Respondent was after a trial companyvicted by the learned Metropolitan Magistrate by his Judgment dated 23rd /26th February, 1991. He was sentenced to rigorous imprisonment for 1 1/2 years and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo simple imprisonment for six months. The Respondent filed an Appeal before the Sessions Judge, New Delhi. The Sessions Judge by his Judgment dated 13th February, 1995 acquitted the Respondent only on the ground that the trial Court, while recording the statement of the Accused Respondent under Section 313 of the Criminal Procedure Code, did number read out the companytents of the certificate of the Director, Central Food Laboratory to the accused. As against this acquittal the appellants filed an appeal to the High Court of Delhi. As on identical grounds i.e. that the companytents of the certificate of the Director, Central Food Laboratory had number been put to the accused while recording his statement under Section 313 Cr.P.C. many other accused had also been acquitted a number of other appeals had also been filed by the appellants. All those appeals came to be dismissed by the High Court by the impugned Order dated 20th November, 2000. The High Court dismissed all the appeals on two grounds a that number putting of the companytents of the certificate of the Director, Central Food Laboratory, to the accused, whilst recording his statement under Section 313 Cr.P.C., was a vital omission and that the companyviction companyld number therefore be maintained and b that all the appeals were barred by limitation as they were number filed within a period of 60 days as provided under by sub-section 5 of Section 378 Cr.P.C. Hence these appeals. In these appeals we are only companycerned with the abovementioned two questions of law. Dealing with the first question first. This Court has, in the case of Shivaji Sahabrao Bobade v. State of Maharashtra reported in 1973 2 SCC 793, held as follows It is trite law, nevertheless fundamental, that the prisoners attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if companysequential miscarriage of justice has flowed. However, where such an omission has occurred it does number ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material number being put to the accused, the Court must ordinarily eschew such material from companysideration. It is also open to the appellate Court to call upon the companynsel for the accused to show what explanation the accused has as regards the circumstances established against him but number put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that numberacceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would number have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its companyviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards companypliance with Section 342, Cr. P.C., the omission has number been shown to have caused prejudice to the accused. emphasis supplied The same view has been reiterated by this Court in the case of Basavaraj R. Patil v. State of Karnataka reported in 2000 8 SCC 740. Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does number ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material number having been put to the accused, the appellate companyrt can always make good that lapse by calling upon the companynsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but number put to him. This being the law, in our view, both the Sessions Judge and the High Court were wrong in companycluding that the omission to put the companytents of the certificate of the Director, Central Food Laboratory, companyld only result in the accused being acquitted. The accused had to show that some prejudice was caused to him by the report number being put to him. Even otherwise, it was the duty of the Sessions Judge and or the High Court, if they found that some vital circumstance had number been put to the accused, to put those questions to the companynsel for the accused and get the answers of the accused. If the accused companyld number give any plausible or reasonable explanation it would have to be assumed that there was numberexplanation. Both the Sessions Judge and the High Court have overlooked this position of law and failed to perform their duties and thereby wrongly acquitted the accused. We further find that in all these cases, the companyy of the certificate of the Director, Central Food Laboratory had been supplied to the accused. They were thus aware of the companytents of the certificate. It has to be seen that under the Prevention of Food Adulteration Act the prosecution is based upon the companytents of either the report of the Public Analyst or the certificate of the Director of Central Food Laboratory. During their examination, under Section 313 Cr.P.C. questions pertaining to the certificate were put to the accused. The explanation of the accused, in respect of the certificate, had been called for. In our view in such cases it is enough if the attention of the accused is brought to the report or the certificate as the case may be. It is number necessary that the companytents of the report be also put to the accused. Let us number see what were the questions put to the accused in these cases. We have been shown the statement of the accused, under Section 313 Cr.P.C. in only two of the appeals. However, it is admitted that in other cases also the questions were similar. In Criminal Appeal No. of 2001 arising out of SLP Crl. No. 1617 of 2001 the question put to the accused and the answer obtained from him are as follows Q It is further in evidence that on receipt of companyy of P.A.s and intimation letter, you exercised your right under Section 13 2 and Director, CFL vide his certificate Ex.PX declared the sample to be adulterated. What have you to say? Answer It is a matter of record. In Criminal Appeal No. of 2001 arising out of SLP Crl. No. 2437 of 2001 the question put and the answer given are as follows It is further in evidence that intimation letter alongwith companyy of PA report was served on you IO the Court and you exercised your right u s 12 2 of the PFA Act and certificate of director is Ex. PX. What have to say? Ans. The certificate is erroneous and it is the result of the negligence companymitted by the F.I. in the sample proceeding. Thus it is to be seen that the questions clearly indicated that what was being put to the accused were the companytents of the certificate. It is also to be seen that the accused clearly understood that what was being put to them was the companytents of the certificate. The accused Ashwani Kumar in Criminal Appeal No. of 2001 arising out of SLP Crl. No. 2437 of 2001 in fact answered that the certificate was erroneous and was a result of negligence companymitted by the Food Inspector in the sample proceedings. Similarly accused Dharampal in Criminal Appeal No. of 2001 arising out of SLP Crl. No. 1617 of 2001 answered that the report was a matter of record. The accused gave their answers to the companytents of the certificate. Clearly numberprejudice had been caused to them. Before us also it companyld number be shown that any prejudice had been caused to them. This aspect of the matter was companypletely overlooked by both the Sessions Judge and the High Court. In our view, neither the Judgment of the Sessions Judge number the reasoning of the High Court on this point can be sustained. The second question had only been urged before the High Court. The submission made before the High Court was that the appeal had number been filed by a public servant and therefore the limitation for filing such an appeal was 60 days. This submission found favour with the High Court. In all fairness, to companynsel appearing for the respondents before us, it must be stated that such a companytention was number canvassed before this Court, as it is clearly an untenable companytention. Before us it was submitted by Mr. Lalit, that the appeals should have been filed within 90 days from the date of the Order as provided in Article 114 of the Limitation Act. To understand what the periods of limitation under Section 378 of the Cr.P.C. are one must first look at Section 417 as it stood in the Criminal Procedure Code, 1898. Section 417, as it then stood, read as follows 417. 1 Subject to the provisions of sub-section 5 , the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment companystituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. If such an order of acquittal is passed in any case instituted upon companyplaint and the High Court, on an application made to it by the companyplainant in this behalf, grants special leave to appeal from the order of acquittal, the companyplainant may present such an appeal to the High Court. No application under sub-section 3 for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. If, in any case, the application under sub-section 3 for the grant of special leave to appeal from an order of acquittal is refused, numberappeal from that order of acquittal shall lie under sub-section 1 . Thus it is to be seen that, under Section 417 of the Criminal Procedure Code, 1898, an appeal against acquittal companyld be filed by the State Government or by the Central Government. An appeal against acquittal companyld in cases instituted upon companyplaint, be filed by the companyplainant provided the companyplainant obtained special leave to appeal from the High Court. Under Section 417 4 numberapplication for grant of special leave companyld be entertained by the High Court after an expiry of 60 days from the order of acquittal. Thus, under Section 417 an application for special leave to appeal had to be made only by the companyplainant. If the State Government or the Central Government filed an Appeal then numberapplication for special leave to appeal had to be made. It is because of this that Article 114 a of the Limitation Act provided that an appeal, by the State Government or the Central Government under sub-sections 1 or 2 of Section 417 of the Criminal Procedure Code, 1898, was to be filed within 90 days from the date of the Order. Article 114 b provides that an Appeal under sub-section 3 of Section 417 of the Criminal Procedure Code, 1898 must be filed within 30 days from date of grant of special leave. Thus under Section 417 of the Criminal Procedure Code, 1898 numberapplication for special leave to appeal had to be made by the State Government or the Central Government, if they filed an appeal against acquittal. The period of 60 days provided in Section 417 4 did number apply to an appeal by the State Government or the Central Government. The period of limitation for the State Government or the Central Government was only under Article 114 a of the Limitation Act. Also to be numbered that the right of the State Government to file an Appeal under Section 417 1 was subject to provisions of sub-section 5 . Sub-section 5 provided that if special leave to appeal had been refused to a companyplainant then the State Government companyld number maintain an appeal. In the Criminal Procedure Code, 1973, Section 417 has been substituted by Section 378, which reads as follows Appeal in case of acquittal. - 1 Save as otherwise provided in sub-section 2 and subject to the provisions of subsections 3 and 5 , the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of session in revision. If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment companystituted under the Delhi Special Police Establishment Act, 1946 25 of 1946 , or by any other agency empowered to make investigation into an offence under any Central Act other than this Code the Central Government may also direct the Public Prosecutor to present an appeal subject to the provisions of sub-section 3 to the High Court from the order of acquittal. No appeal under sub-section 1 or sub-section 2 shall be entertained except with the leave of the High Court. If such an order of acquittal is passed in any case instituted upon companyplaint and the High Court, on an application made to it by the companyplainant in this behalf, grants special leave to appeal from the order of acquittal, the companyplainant may present such an appeal to the High Court. No application under sub-section 4 for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the companyplainant is a public servant and sixty days in every other case, companyputed from the date of that order of acquittal. If, in any case, the application under sub-section 4 for the grant of special leave, to appeal from an order of acquittal is refused, numberappeal from that order of acquittal shall lie under sub-section 1 or under sub-section 2 . A companyparison of Section 378 with the old Section 417 shows that, whilst under the old Section numberapplication for leave to appeal had to be made by the State Government or the Central Government, number by virtue of Section 378 3 the State Government or the Central Government have to obtain leave of the High Court before their appeal companyld be entertained. Sub-Section 4 of Section 378 is identical to Sub-Section 3 of Section Thus a companyplainant desirous of filing an appeal against acquittal must still obtain special leave. Thus, Section 378 makes a distinction between an appeal filed by the State Government or the Central Government, who only need to obtain leave, and an appeal by a companyplainant who needs to obtain special leave. The limitation provided in sub-section 5 is only in respect of applications under sub-section 4 i.e. application for special leave to appeal by a companyplainant. A companyplainant may be either a public servant or a private party. If the companyplainant is a public servant then the period of limitation for an application for special leave is 6 months. If the companyplainant is a private party then the period of limitation for an application for special leave is 60 days. The periods of 6 months and or 60 days do number apply to appeals by the State Government under sub-section 1 or the Central Government under sub-section 2 . Appeals by the State Government or the Central Government companytinue to be governed by Article 114 a of the Limitation Act. In other words, those appeals must be filed within 90 days from the date of the order appealed from. Needless to state if there is a delay in filing an appeal by the State Government or Central Government it would be open to them to file an application under Section 5 of the Limitation Act for companydonation of such delay. That period can be extended if the companyrt is satisfied that there was sufficient cause for number preferring the appeal within the period of 90 days. The High Court was thus wrong in companycluding that the appeals had to be filed within 60 days as provided in Section 378 5 . It must also be numbered that sub-section 6 of Section 378 is identical to sub-section 5 of Section 417. Thus under Section 378 also the State Government cannot maintain an appeal if special leave to appeal is refused to the companyplainant. In this behalf there is numberchange. Section 417 1 specifically provided that it was subject to provisions of sub-section 5 . Section 317 1 similarly provide that it is subject to sub-sections 3 and 5 . Sub-section 3 is the newly added provision which number provides that an appeal by the State or Central Government cannot be entertained without leave of the High Court. However the reference to sub-section 5 in subsection 1 is clearly an inadvertant mistake. As pointed out above subsection 5 of Section 378 applies only to application for special leave by a companyplainant. Sub-section 5 of Section 378 has numberapplication to an appeal by the State Government or to an application for leave under sub-section 3 . What the Legislature clearly intended was to companytinue to provide that an appeal by the State Government would number be maintainable if special leave to appeal had been refused to a companyplainant. Thus sub-section 1 of Section 378 was to be subject to provisions of sub-section 6 and number subsection 5 as inadvertantly provided therein. Inadvertantly the figure 5 in Section 417 1 was companytinued, without numbericing that number under Section 378 the relevant provision was sub-section 6 . In our view it is clear that the figure 5 in Section 378 1 is inadvertantly retained. Thus in Section 378 1 the figure 6 will have to be read in place of the figure 5 . There is one last fact which must be mentioned. We find that the main argument on the question of limitation was made before the High Court on behalf of Respondent Dharampal i.e. the Respondent in Criminal Appeal No. of 2001 arising out of SLP Crl. No. 1617 of 2001 . It had been argued on his behalf that the Appeal against his acquittal was barred by limitation as there was a delay of 95 days. The High Court accepted this companytention. We however find from a companyy of an Order produced before us that in his Appeal, before the High Court, the delay had already been companydoned. The Order, which is available in this SLP Paper Book, reads as follows O R D E R 21.5.96 Present Mr. B.T. Singh for the Petitioner Crl. M. 2245/96. Leave granted. This application is disposed of. Crl. M. 2246/96. Delay in refiling the appeal is companydoned. This application is disposed of. Crl. A. 92/96. Let the appeal be registered. Appeal is admitted. Sd - Arun Kumar, J. Sd - May 21, 1996. Mohd. Shamim, J. The delay already having been companydoned there was numberquestion of the High Court subsequently entertaining and upholding an argument on delay. This does number seem to have been brought to the numberice of the High Court. In any view of the matter, the impugned Order cannot be sustained. The Orders of the Sessions Judge dismissing the Appeals also cannot be sustained. Therefore, the impugned Judgment dated 20th November, 2000 as well as the Orders of the Sessions Judge in the above mentioned three cases are set aside. |
SYED SHAH MOHAMMED QUADRI,J. Leave is granted. The appellant and the second respondent were partners of partnership firm, M s.Jupiter Industries. A companyplaint was lodged against the second and third respondents, FIR No.193, under Sections 405, 406 and 408, IPC at the Police Station, Mujessar, District Faridabad on July 19, 1996. A Civil Suit is pending between the parties for dissolution of the partnership firm and rendition of accounts. The said respondents filed Criminal Misc.Petition 24679-M of 1997 before the High Court of Punjab Haryana praying to quash the FIR. The High Court by its order dated April 17, 1998, having numbericed that a Civil Suit is pending between the parties and investigation on the companyplaint of the appellant by the police is in progress, stayed the filing of the final report under Section 173, Cr.P.C. by the police. It is from that order, this appeal has arisen. Heard the learned companynsel for the parties. The relevant portion of the impugned order of the High Court reads as follows In view of the facts and circumstances of the case, it appears to be reasonable, if the filing of the final report under Section 173, Cr.P.C. is stayed till the decision of the suit. Ordered accordingly. It is number well-settled that the width of power of the High Court under Section 482 Cr.P.C., in principle, is very expansive but in practice the power is exercised in exceptional cases. The inherent power of the Court is number an unrestricted power to make any order which the High Court desires to pass. The power is meant to be exercised to give effect to any order under Cr.P.C. or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. By passing the impugned order, the High Court did number achieve any of the purposes for which the power exists. It does numbergood to anybody. It is of utmost importance that criminal cases be disposed of expeditiously as right of an accused to have speedy trial is a right which flows from Article 21 of the Constitution. Far from ensuring speedy trial the High Court placed embargo at the pre-trial stage by staying the filing of final report by the police under Section 173 Cr.P.C. It is a wellknown fact that disposal of a civil suit takes fairly long time, so numberuseful purpose will be achieved by staying the filing of the final report under Section 173 Cr.P.C. by the police till the disposal of the suit. The impugned order serves numberuseful purpose, nay, it is wholly extraneous to the purposes for which the power is preserved. In our view, it is most inappropriate to stay the filing of the final report by the police under Section 173 Cr.P.C. after the police has investigated the case. We are, therefore, unable to sustain the order under appeal we set aside the same. |
M. Ahamadi, J. The appellant is the original plaintiff. He was a judicial officer, a Civil Judge Judicial Division , in the judicial service of the State of Gujarat when he was visited with the penalty of dismissal from service. The facts giving rise to the institution of a civil suit by him challenging the dismissal may be briefly stated. The appellant joined the judicial service on January 3, 1952 and he was serving as Civil Judge Judicial Division - Judicial Magistrate Ist Class Karjan Senor in 1961, in which capacity he was required to hold sittings at the Link Court at Senor for four days in a fortnight with headquarters at Karjan. He was, therefore, required to travel to and fro by train to discharge his duties at Senor. It was alleged that he travelled without purchasing a ticket but preferred travelling allowance bills and companylected the money from the State Treasury. On this allegation a departmental inquiry was initiated against him by the Government and District Judge, Banaskantha was appointed Enquiry Officer. At the companyclusion of the departmental inquiry he was served with a numberice dated March 22, 1965 to show cause why the penalty of dismissal from service should number be imposed. After taking into account the cause shown, the State Government passed an order dated November 3, 1965 dismissing him from service. That order was challenged by way of a writ petition in the High Court under Article 226 of the Constitution, being Special Civil Application No. 220 of 1966. The writ petition was allowed by an order dated March 20, 1970 whereby the order of dismissal was quashed by a learned Single Judge on the ground that the State Government was number companypetent to order and initiate the inquiry. Consequently the order of dismissal passed on the basis of such inquiry was void. The Letters Patent Appeal No. 71 of 1970 preferred by the State of Gujarat against the said order failed. Thereupon it would have been incumbent to reinstate him in service, but it appears that the High Court of Gujarat on the administrative side decided to initiate a fresh inquiry against him on the same charge. So by the order dated June 20, 1975 the delinquent was placed under suspension with effect from the date of the service of that order. The inquiry companyducted pursuant to the High Court direction also ended in the dismissal of the delinquent from service. The delinquent, however, claimed a sum of Rs. 76579.62 p. as arrears of salary for the period from November 3, 1965 to June 26, 1975. This claim was resisted on the ground that he must be deemed to be under suspension from November 3, 1965 in view of Rule 5 4 of the Gujarat Civil Services Discipline and Appeal Rules, 1975 the Rules hereinafter . That Rule reads as under Where a penalty of dismissal, removal or companypulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in companysequence of or by a decision of a companyrt of law, and the disciplinary authority on a companysideration of the circumstances of the case, decided to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or companypulsory retirement was originally imposed the government servant shall be deemed to have been placed under suspension by the appointing authority, from the date of the original order of dismissal, removal or companypulsory retirement and shall companytinue to remain under suspension until further orders. The State Government refused to pay the salary from November 3, 1965 to June 26, 1975, the date on which the suspension order passed by the High Court dated June 20, 1975 was served on the delinquent, invoking Rule 5 4 of the Rules. The delinquent, therefore, filed a suit to recover the arrear of Rs. 76,579.62 p. for the period between November 3, 1965 and June 26, 1975. The suit, however, failed in the trial companyrt and that decision was companyfirmed in first appeal by a Division Bench of the High Court. Hence, this appeal by special leave. Mr. Krishan Mahajan, the learned Counsel for the appellant, formulated the point for companysideration as under Whether an order passed in a departmental inquiry held in derogation of Article 235 of the Constitution of India, can be put to use for deemed suspension under Rule 5 4 of the Rules? He companytended that if the Rule is so interpreted it would directly impinge on the companytrol jurisdiction of the High Court under Article 235 of the Constitution inasmuch as the result of the inquiry which can be described as number est would be used for the purpose of deemed suspension. On the other hand Mr. Sachthey, the learned companynsel for the State, submitted that the validity of similar Rule 12 4 of the Central Civil Services Classification, Control and Appeal Rules, 1957 was questioned before this Court in Khem Chand v. Union of India 1963-I-LLJ-665, and this Court held that the said Rule was number unconstitutional. We do number think it necessary to go into the question of the companystitutional validity of Rule 5 4 of the Rules. We propose to dispose of this appeal on the assumption that the said Rule is valid and intra vires the Constitution. Even on that assumption we think that in the facts and circumstances of this case that Rule companyld have numberapplication. The Constitution places companytrol over subordinate companyrts in the High Court. Article 235 says that the companytrol over the District Courts and the companyrts subordinate thereto including posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall vest in the High Court. It is, therefore, clear on a plain reading of this Article as explained by this Court in a catena of decisions beginning with the case of State of West Bengal v. Nripendra Nath Bagchi 1968-I-LLJ-270 and onwards that companytrol to be exercised also relates to matters of discipline so far as judges of the subordinate companyrts are companycerned which is an absolute necessity for the maintenance of judicial independence. Admittedly, in the instant case the inquiry was initiated by the State Government and the Enquiry Officer was also chosen and appointed by the State Government. The tentative decision to impose the penalty of dismissal was also formed by the State Government before the issuance of the 2nd show-cause numberice to the delinquent. The final decision to impose the penalty of dismissal was also taken by the State Government and companymunicated on November 3, 1965. That was clearly in companytravention of the companytrol jurisdiction of the High Court under Article 235 of the Constitution. The entire proceedings beginning with the departmental enquiry and companycluding with the order of dismissal was, therefore, by an authority which Article 235 did number companyntenance to exercise jurisdiction. The order of dismissal was, therefore, clearly passed in derogation of the companycept of judicial independence and companytrol enshrined in Article 235 of the Constitution. Such an inquiry and companysequential order passed pursuant thereto can have numberefficacy in law. Rule 5 4 does number, therefore, deal with a situation of this type where the departmental inquiry is initiated and companycluded by an authority which was precluded from doing so in view of the clear mandate of Article 235 of the Constitution. Such an order can have numberexistence in law and, therefore, has to be ignored. While it is true that Rule 5 4 of the Rules speaks of an order being declared or rendered void on being set aside by a companyrt, it cannot relate to an order of this type which is an order passed by an authority which was number companypetent to initiate disciplinary proceedings against judicial officer who was under the companytrol of the High Court because to so interpret the sub-rule would be to recognise, even for the limited purpose of deemed suspension, the order of dismissal passed in pursuance of the departmental inquiry initiated by such an authority. Rule would be applicable to orders which are passed by a companypetent authority but declared void by a companyrt on grounds, such as, violation of the principle of natural justice, etc. We are, therefore, of the opinion that since the entire inquiry initiated by the State Government culminating in the order of removal dated November 3, 1965 can have numberexistence and efficacy in law, that has to be ignored. Therefore, when the High Court passed the order of suspension dated June 20, 1975 it did number rely on this sub-rule number did it say that it will have retrospective operation. The Courts below were, therefore, number right in accepting the States companytention that the delinquent must be deemed to be under suspension with effect from November 3, 1965 by the thrust of Rule 5 4 of the Rules. We are, therefore, of the opinion that this appeal must be allowed. The learned companynsel for the appellant submitted that several years have passed and the appellant is number an old man and if he is to reap the benefit of this Courts order it would be desirable that this Court directs lump sum payment rather than leave it to the Government to calculate the amount after deducting what he had earned as a practitioner. He submitted that the suit was for Rs. 76,579.62 p. and having regard to the fact that he had earned by reverting to the profession, such deductions as may be companysidered appropriate, may be made and a lump sum payment, may be ordered. Even the learned companynsel for the State did number see any reason to oppose such a prayer. Having taken into companysideration all the facts and circumstances of the case and the nature of allegation levelled against the delinquent, we think it proper to direct lump sum payment of Rs. 50,000 in full and final settlement of the claim of the appellant. |
Leave granted. We have heard learned companynsel on both sides. This appeal by special leave arises against the order of the Central administrative tribunal, new Delhi made on 17.5.1990 in OA No.1201/87. The primary companytention of the appellant which prima facie appeals us is that since the appellant was a casual worker and attained the temporary status, throwing him out of service while his junior was retained, is an arbitrary action. we gave numberice to the respondents by order dated April 30,1996 directing them to explain as under Learned companynsel for the petitioner pointed out Annexure-AA to the petitioner was engaged as Choukidar on January 13,1986 and he was companyferred temporary status on January 8,1967. One Rohtas kumar son of Ganpat Ram was also engaged as Choukidar with effect from February 28,1986 and he was companyferred temporary status on february 23, 1987 and both of them have been given medical fit under category C.I. It is also stated that Rohtas kumar had already been regularised after the schemes was wound up while the petitioner being the senior was entitled for regularisation or posting elsewhere. Pursuant thereto, an affidavit has been filed by Mr. Ved Prakash, Divisional Personnel Officer of the Northern Railway, New Delhi, in paragraph 7 at page 44 it is stated as under In reply to paragraph 4 c I say that central Organisation for operations Information system is separate and distinct entity from Northern Railways. In vices of Annexure-A, the applicants services companye to an end on 10.9.1987 on account of winding up of the organisation. It is submitted that most of the staff was absorbed by the centre for Railway Information system CRIS . A list of 20 casual Labours who companyld number be absorbed to the chief Engineer companystruction numberthern Railway kashmere Gate Delhi by COIS for re-engagement provided there was requirement for work. It is respectfully submitted that about seven casual labours including Shri Rohtas kumar S O Shri Ganpat Ram were spared as per requirement and accordingly they were offered appointment by the companystruction department. It is further submitted that after winding up the organisation, the applications from the willing staff were invited by the respondent No.4 if they wanted appointment in centre for Railway information system. It appears that the petitioner never applied for appointment and as such he was number companysidered for appointment. The Central Organisation for operations and information system is separate and distinct entity from Northern Railways. In view of Annexure-A, the applicants services came to an and on 10.9.1987 on account of winding up of the said organisation. |
Gajendragadkar, J. This appeal by special leave raises a short question about the companystruction of the numberification No. 1131-46 issued by the Government of Bombay on October 4, 1952, under s. 2 4 of the Bombay Industrial Relations Act, 1946 Bom. 11 of 1947 hereinafter called the Act . The respondent, who was a stenographer employed by the appellant, the Godavari Sugar Mills Ltd., at its head office in Bombay was dismissed by the appellant on April 22, 1955. He had been working as a stenographer for some years past on a salary of Rs. 135 plus Rs. 27 as dearness allowance. He was charged with having companymitted acts of disobedience and insubordination, and after a proper enquiry where he was given an opportunity to defend himself, he was found guilty of the alleged misconduct that is why his services were terminated that is the appellants case. The respondent challenged the legality and propriety of his dismissal by an application before the Labour Court at Bombay he purported to make this application under s. 42 4 read with s. 78 1 a i and iii of the Act. The appellant in reply challenged the companypetence of the application on the ground that the Act did number apply to the respondents case, and so the Labour Court had numberjurisdiction to entertain it. Both the parties agreed that the question of jurisdiction thus raised by the appellant should be tried as a preliminary issue and so the Labour Court companysidered the said objection and upheld it. It held that the numberification in question on which the respondent relied did number apply to the head office of the appellant at Bombay accordingly the Labour Court dismissed the respondents application. The respondent challenged the companyrectness of this decision by preferring an appeal before the Industrial Court. His appeal, however, failed since the Industrial Court agreed with the Labour Court in holding that the numberification did number apply to the head office of the appellant. The matter was then taken by the respondent before the Labour Appellate Tribunal and this time the respondent succeeded, the Labour Appellate Tribunal having held that the numberification applied to the head office and that the respondent was entitled to claim the benefit of the provisions of the Act. On this finding the Labour Appellate Tribunal set aside the order passed by the companyrts below and remanded the case to the Labour Court for disposal on the merits in accordance with law. It is this order which has given rise to the present appeal and the only question which it raises for our decision is whether the numberification in question applies to the head office of the appellant at Bombay. The Act has been passed by the Bombay Legislature in order to regulate relations of employers and employees, to make provision for settlement of industrial disputes and to provide for certain other purposes. It has made elaborate provisions in order to carry out its object, and has companyferred some benefits on the employees in addition to those which have been companyferred on them by the Central Industrial Disputes Act, XIV of 1947. Under s. 42 4 of the Act, for instance, an employee desiring a change in respect of any order passed by the employer under standing orders can make an application to the Labour Court in that behalf subject to the proviso which it is unnecessary to set out. Section 78 1 a iii requires the Labour Court to decide whether any change made by an employer or desired by an employee should be made. An order of dismissal passed by an employer can, therefore, be challenged by the employee directly by an application before the Labour Court under the Act, whereas under the Central Act a companyplaint against wrongful dismissal can become an industrial dispute only if it is sponsored by the relevant union or taken up by a group of employees and is referred to the industrial tribunal for adjudication under s. 10 of the Act. Since the respondent claims a special benefit under the Act he companytends that his case falls under the numberification. It is companymon ground that if the numberification applies to the case of the respondent the application made by him to the Labour Court would be companypetent and would have to be companysidered on the merits on the other hand, if the said numberification does number apply then the application is incompetent and must be dismissed in limine on that ground. Let us number read the numberification. It has been issued by the Government of Bombay in exercise of the powers companyferred on it by s. 2, sub-section 4 , of the Act, and in supersession of an earlier numberification, and it provides that the Government of Bombay is pleased to direct that all the provisions of the said Act shall apply to the following industry, viz., the manufacture of sugar and its by-products including 1 the growing of sugarcane on farms belonging to or attached to companycerns engaged in the said manufacture, and 2 all agricultural and industrial operations companynected with the growing of sugarcane or the said manufacture, engaged in such companycerns. Note For the purposes of this numberification all service or employment companynected with the companyduct of the above industry shall be deemed to be part of the industry when engaged in or by an employer engaged in that industry. It is significant that the numberification applies number to sugar industry as such but to the manufacture of sugar and its by-products. If the expression sugar industry had been used it would have been possible to companystrue that expression in a broader sense having regard to the wide definition of the word industry prescribed in s. 2 19 of the Act but the numberification has deliberately adopted a different phraseology and has brought within its purview number the sugar industry as such but the manufacture of sugar and its by-products. Unfortunately the Labour Appellate Tribunal has read the numberification as though it referred to the sugar industry as such. That is a serious infirmity in the decision of the Labour Appellate Tribunal. Besides, the inclusion of the two items specified in cls. 1 and 2 is also significant. Section 2 19 b i shows that industry includes agriculture and agricultural operations. Now, if the manufacture of sugar and its by-products had the same meaning as the expression sugar industry, then the two items added by cls. 1 and 2 would have been included in the said expression by virtue of the definition of industry itself and the addition of the two clauses would have been superfluous. The fact that the two items have been included specifically clearly indicates that the first part of the numberification would number have applied to them, and it is with a view to extend the scope of the said clause that the inclusive words introducing the two items have been used. This fact also shows the limited interpretation which must be put on the words the manufacture of sugar and its by-products. It is true that the numbere added to the numberification purports to include within the scope of the numberification some cases of service and employment by the deeming process. Unfortunately the last clause in the numbere is unhappily worded and it is difficult to understand what exactly it was intended to mean. Even so, though by the first part of the numbere some kinds of service or employment are deemed to be part of the industry in question by virtue of the fact that they are companynected with the companyduct of the said industry, the latter part of the numbere requires that the said service or employment must be engaged in that industry. It is possible that the workers engaged in manuring or a clerk in the manure depot which is required to issue manure to the agricultural farm which grows sugarcane may for instance be included within the scope of the numberification by virtue of the numbere, but it is difficult to see how the respondent, who is an employee in the head office at Bombay, can claim the benefit of this numbere. The addition made by the deeming clause on the strength of the companynection of certain services and employments with the companyduct of the industry is also companytrolled by the requirement that the said services or employments must be engaged in that industry so that companynection with the industry has nevertheless to be established before the numbere can be applied to the respondent. It has been urged before us by Mr. Sastri, for the respondent, that at the head office there is accounts department, the establishment section, stores purchase section and legal department, and he pointed out that the machinery which is purchased for the industry is landed at Bombay, received by the head office and is then sent to the factories. In fact the factories and the offices attached to them are situated at Lakshmiwadi and Sakharwadi respectively and are separated by hundreds of miles from the head office at Bombay. The fact that the machinery required at the factories is received at the head office and has to be forwarded to the respective factories cannot, in our opinion, assist the respondent in companytending that the head office itself and all the employees engaged in it fall within the numbere to the numberification. The object of the numberification appears to be to companyfine its benefits to service or employment which is companynected with the manufacture of sugar and its by-products including the two items specified in clause 1 and clause 2 . Subsidiary services such as those we have indicated are also included by virtue of the numbere but in our opinion it is difficult to extend the scope of the numberification to the head office of the appellant. We must accordingly hold that the Labour Appellate Tribunal erred in law in holding that the case of the respondent was governed by the numberification. Incidentally we would like to add that the registrar appointed under s. 11 of the Act has companysistently refused to recognise the staff of the head office as companying under the numberification, and it is companymon ground that the companysistent practice in the matter so far is against the plea raised by the respondent. It is perfectly true that in companystruing the numberification the prevailing practice can have numberrelevance but if after companystruing the numberification we companye to the companyclusion that the head office is outside the purview of the numberification it would number be irrelevant to refer to the prevailing practice which happens to be companysistent with the companystruction we have placed on the numberification. It appears that in the companyrts below reference was made to a similar numberification issued in respect of textile industry under s. 2, sub-section 3 , of the Act and the relevant decisions companystruing the said numberification were cited. We do number think any useful purpose will be served by companysidering the said numberification and the decisions thereunder. In the result the appeal is allowed, the order passed by the Labour Appellate Tribunal is set aside and the respondents application is dismissed. |
ORIGINAL JURISDICTION Writ Petition No. 1669 of 1986. Under Article 32 of the Constitution of India . By post. The Judgment of the Court was delivered by THAKKAR, J. Reasons, good and substantial, exist for directing the petitioner to approach the companycerned High Court in the first instance instead of knocking at the doors of this Court straightaway. And these need to be spelled out. An illustration may tell more effectively, what otherwise may number be told as effectively, and perhaps, only with some embarrassment. Suppose there is only one National Hospital established especially for performing open-heart surgery which cannot be performed elsewhere in any of the eighteen Regional Hospitals. |
Substitution allowed. The original appellant before us was employed in the establishment of the respondent. He was dismissed in 1990 and-approval of the Industrial tribunal was sought for under Section 33 2 b of the Industrial Disputes Act, 1947. Such approval was granted by the tribunal on 26-7-1993, which was challenged in a proceeding arising under Articles 226/227 of the Constitution of India before the High Court. Learned single Judge who dealt with the writ petition quashed the order made by the Industrial Tribunal. On further appeal to the Division Bench, the High Court set aside the order made by the learned single Judge and restored that of the Industrial Tribunal. Hence this appeal by special leave. During the pendency of these proceedings, it is brought to our numberice, that the appellant had died. The legal representatives are allowed to companye on record. The companytention put forth before us is that the High Court should number have interfered with the order made by the learned single Judge on the ground that the learned single Judge had numberjurisdiction to deal with the matter. There may be force in the company tention advanced on behalf of the appellant but that is number the end of the matter as the High Court should have proceeded to find out whether the Tribunal had dealt with the matter appropriately or number. The companytention put forth before the Industrial Tribunal is that the disciplinary action taken against the original appellant is based upon the allegation of distribution of Pamphlet which he did as an office-bearer of the Trade Union. That aspect was examined by the Tribunal. The Tribunal was prima facie satisfied that the allegations made in the Pamphlet were number true and companyrect and on the material before it came to the companyclusion that the Inquiry Officer and the Disciplinary Authority had based their companyclusions on legal evidence and such companyclusion companyld number be termed as perverse and charge No. 1 made was found fully proved against the original appellant in those circumstances the Industrial Tribunal granted approval to the action of the employer-respondent in dismissing the original appellant-workman. The learned single Judge therefore was number justified in holding that the Tribunal has companymitted error while granting approval to the action of the employer in dismissing the workman. The appropriate companyrse for the original appellant was to have invoked Section 10 of the Industrial Disputes Act to work out his rights. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 532 of 1966. In forma pauperis . Appeal by special leave from the judgment and order dated September 17, 1962 of the Madhya Pradesh High Court in Misc. Appeal No. 22 of 1962. V. Goswami, for the appellant. C. Agarwala and D. P. Singh for respondent No. 1. The Judgment of the Court was delivered by Grover, J. This is an appeal in forma pauperis by special leave from a judgment of the Madhya Pradesh High Court at Jabalpur dismissing the suit of the appellant for a declaration that she was the owner of the suit properties and for possession thereof. Jangi Jogi had inherited from his father properties companysisting of some groves and a house in village Mukupdpur which was in the erstwhile State of Rewa which later became a part of the St-ate number called Madhya Pradesh. He had a son Laldas who is stated to have died in 1945 leaving the appellant, his widow, as, his heir and legal representative. After the death of Laldas Jangi Jogi is alleged to have married Mst. Jugli Bai in the year 1948. Jangi Jogi himself died sometime in 1950. Respondent No. 1 is stated to have raised a claim to the properties of Jangi Jogi by virtue of a gift deed. On the basis of that deed be moved the criminal companyrts under S. 145, Criminal Procedure Code and on December 29, 1962 an order was made directing the possession of the properties to be delivered to the said respondent. The appellant, therefore, instituted a suit in the companyrt of Civil judge at Rewa for a declaration in respect of her rights and for possession of the properties mentioned in the plaint. The suit was instituted by the appellant along with Jugli Bai the widow of Jangi Jogi. Respondent No. 1 who was the sole defendant in the suit put up several pleas claiming, inter alia. that he had been in companytinuous possession of the suit properties for more than twelve years and had become the owner. Alternatively it was pleaded if any one companyld have any interest it would be plaintiff No. 2 Jugli Bai but she had as a matter of fact number joined in the suit and her thumb impression on the plaint had been obtained by fraud. On the pleadings of the parties the trial companyrt framed as many as 12 issues. During the pendency of the suit plaintiff No. 2 Jugli Bai entered into companypromise with respondent No. 1 giving up all her claims. The trial companyrt found that the thumb impression of plaintiff had number been obtained by fraud but that she had changed sides much to the disadvantage of the appellant. As regards the deed of gift set up by respondent No. 1, it was found that Jangi Jogi had never made such a gift. It was further found that the appellant was in possession until she had been dispossessed by respondent No. 1 by means of the proceedings under s. 145, Cr.P.C. According to the trial companyrt the said respondent had illegally occupied the lands for some time and since the proceedings under s. 145, Cr.P.C., resulted in his favour he was put into possession through the process taken under those proceedings. So far as the title of respondent No. 1 was companycerned it was found that his position was that of a mere trespasser. The trial companyrt, however, numbersuited the appellant on the ground that since her husband had died in the lifetime of Jangi Jogi the laters estate devolved on his widow Jugli Bai who would be his only heir and she had entered into a companypromise with respondent No. 1. The appellant went up in appeal to the companyrt of District Judge, Rewa. The learned District Judge examined the point whether the companypromise entered into by one of the plaintiffs Jugli Bai with the defendant was valid and should have been given effect to by the trial companyrt. According to him it companyld number be said that the appellant bad numberright or interest in the properties left by Jangi Jogi. He felt that the companypromise which had been entered into by Jugli Bai and the, defendant should number have been accepted as the appellant was number a party to that companypromise. He was further of the view that the trial companyrt bad number decided all the matters which arose for decision. He, therefore, set aside the decree of the trial companyrt and remanded the case with directions to re-admit the suit under its original number and dispose it of in accordance with law. Respondent No. 1 filed a second appeal before the High Court. The High Court took the view that the present appellant companyld have numberinterest in the properties left by Jangi Jogi. She companyld number take advantage of the provision of s. 3 2 of the Hindu Womens Right to Property Act 1937 which companyferred certain rights on the widow of a pre-deceased son. in view of the decision of Federal Court in Umayal Ach v. Lakshmi Achi 1 . The aforesaid Act had been extended to Rewa State by the Part C State Laws Act 1950 which came into force on April 16, 1950, It was urged, inter alia before the High Court that the appellant companyld take a boy in adoption and as soon as such an adoption was made its effect would be that the adoptee would be the son number only of the 1 1945 F.C.R, 1, widow but of her deceased husband as well and further that she had a claim for maintenance over the suit lands. The High Court disposed of this companytention-by saying It is number possible to prejudge the results of an adoption which may, or may number, be made by Smt. Ranibai at all. Similarly, this is number a case in which the right of maintenance was sought to be enforced against Smt. Juglibai on the property which was inherited by her from the last male holder, Jangi Jogi. It may be possible to take up these questions in appropriate proceedings. According to the High Court the companypromise which had been entered into between Jugli Bai and respondent No. 1 did number adversely affect the right, title or interest of the appellant as she had numberright, title or interest in the suit lands. It was companytended on behalf of the appellant that she was in possession of the properties at the time respondent No. 1 dispossessed her by companymitting an act of trespass and, therefore, she was entitled to restoration of possession of those properties from the trespasser. The High Court disposed this of by saying that the rightful claimant on the death of Jangi Jogi was Jugli Bai alone and owing to the companypromise entered into by her respondent No. 1 was clothed with the same rights which were possessed by her. It was further held by the High Court that the companypromise had been properly and lawfully recorded and given effect to by the trial companyrt under 0. 23, r. 3 of the Civil Procedure Code. Now Jugli Bai had filed an application under 0. 23, r. 1, Civil Procedure Code, on February 19, 1959 before the trial companyrt saying, inter alia, that her signature or thumb impression on the plaint had been obtained by misrepresentation by the appellant. The application stated that she was number interested in prosecuting the suit and therefore she was withdrawing the same. The following portion from that application may be reproduced plaintiff No. 2 withdraws her plaint and the statement of claim made therein, and so far as she is companycerned she withdraws the suit and prays that numberclaim be decreed in her favour number any relief mentioned in plaint be granted in her favour. On the other hand, the plaint may be dismissed to the extent of her claim. She is also filing herewith a companypromise to that effect arrived at with the defendant, which may be accepted An application was also filed under 0. 23, r. 3 of the Civil Procedure Code, which purposed to bear the thumb impression of Jugli. Bai and was signed by respondent No. 1. All that was stated therein was that the suit of plaintiff No. 2 in respect of suit lands be dismissed and numberrelief be granted in accordance with the prayer made in the plaint. It is difficult to see how on the basis of these applications the suit of the appellant companyld be dismissed. It cannot be disputed that the appellant who is the widow of a predeceased son of Jangi Jogi was entitled to receive maintenance so long as she did number remarry out of the estate of her father-in-law. Although her claim for maintenance was number a charge upon the estate until it had been fixed and specifically charged thereupon her right was number liable to be defeated except by transfer to a bona fide purchaser for value without numberice of a claim or even with numberice of the claim unless the transfer was made with the intention of defeating her right. The companyrts in India have taken the view that where a widow is in possession of a specific property for the purpose of her maintenance a purchaser buying with numberice of her claim is number entitled to possession of that property without first securing proper maintenance for her vide Rachawa Others v. Shivayogappa 1 . In Yellawa Ors. v. Bhimangavda 2 it was taken to be the settled practice of the Bombay High Court number to allow the heir to recover the family property from a widow entitled to be maintained out of it without first securing a proper maintenance for her out of the property or by such other means as might be deemed sufficient. it is clear from the provisions of the Explanation appearing in s. 14 a the Hindu Succession Act that a situation was companytemplated where a female Hindu companyld be in possession of joint family properties in lieu of maintenance. It may be mentioned that after the enforcement of the Hindu Adoption and Maintenance Act 1956 the rights of widowed daughter-in-law to maintenance are governed by s. 19 of that Act which, however, would number be applicable. In the present case it is difficult to understand how the appellant companyld be deprived of the possession of property by a trespasser. Moreover she was presumably in possession of these properties in lieu of her right of maintenance and companyld number be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties. The rights of the appellant who was in possession qua respondent No. 1 who was found by the trial companyrt to be a trespasser have number been properly companysidered by the Court. On this point reference may be made to a decision of the Privy Council in Ismail Ariff v. Mohamed Ghouse 3 . In that case in a suit for a declaration that the plaintiff was absolute owner of the land in suit and for an injunction, the defence was that the land was subject to a wakf created by the plaintiffs predecessor in title and that the defendant was mutwali thereof. Both companyrts found in I.L.R. 18 Bom. 679. I.L.R. 18 Bom. 452. 3 20 I.A. 99. favour of the plaintiffs possession, and that the defendant was number the mutwali number possessed of any interest in the land, but differed as to the dedication. It was held that the plaintiff was entitled to a declaration as against the defendant that he was lawfully entitled to possession and the relief companysequent thereon. The following observation of Sir Richard Couch may be reproduced with advantage It appears to their Lordships that there is here a misapprehension of the nature of the plaintiffs case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By S. 9 of the Specific Relief Act Act 1 of 1877 , if the plaintiff had been dispossessed otherwise than in due companyrse of law, he companyld, by a suit instituted within six months from the date of the dispossession, have recovered possession, numberwithstanding any other title that might be set up in such suit. If he companyld thus recover possession from, person who might be able, to prove a title, it is certainly right and just that he should be able, against a person who has numbertitle and is a mere wrong-doer, to obtain a declaration of title as owner,-and an injunction to restrain the wrongdoer from interfering with his possession. Keeping the above statement of law in view it must be held that the High Court was in error in companysidering that since Jugli Bai had entered into some companypromise with respondent No. 1 the trial companyrt was justified in dismissing the appellants suit. It is somewhat difficult to understand the observation of the High Court that respondent No. 1 was clothed with the very same rights which were possessed by Jugli Bai. If the findings of the trial companyrt was right that respondent No. 1 was a mere trespasser, it is number possible to see how Jugli Bai companyld effect a transfer of all her rights by merely filing a petition to the effect that she did number wish to prosecute the suit as a companyplaintiff. As has been pointed out the appellant had a possessory title and was entitled to restoration of possession in case it was found that respondent No. 1 had numberright, title or interest whatsoever and was a mere trespasser. The appellant was further entitled to remain in possession if she companyld establish that she had entered into possession by virtue of her claim or right to maintenance until the person laying a claim to the estate of Jangi Jogi made some proper arrangement for the payment of maintenance to her. These are, however, matters on which numberfinal opinion need be expressed as the District Judge was of the opinion that the trial companyrt had number given a proper decision on all the issues and for that reason the suit had been remanded for a fresh decision on all the questions of fact and law. In the view that we have taken the decision of the High Court has to be reversed and that of the District Judge restored. The appeal is thus allowed with companyts here and in the High Court. The amount of companyrt fee shall be recovered by the Government from respondent No. 1 in accordance with Order 17, Rule 8 of the Supreme Court Rules. Costs of appellants Advocate to be taxed against Respondent No. 1 and made recoverable from him. |
With C.A. Nos. 3656-57/95, 4863-64/94, 4390/94, 3529- 3530/95, 5546/94 3165/95, 3172/95, 3760/95, 3658-3659895, 8411/94, 8411/94, 10284/95, 10260/95 , 6545/95. A. 2104/97 S.L.P C No. 54258/95 with J U D G M E N T KIRPAL, J. These appeals, under Section 10 of the Special Court Trial of Offences relating to Transactions in Securities Act, 1992 hereinafter referred to as The Special Court Act arise from the judgment of the Special Court at Bombay which decided companymon questions of law relating certain transactions of purchase of securities by the appellant banks from some of the brokers of whom the Special Courts Act, 1992 had been made applicable. The appellant banks had prior to 6th June, 1992, entered into companytracts with different brokers for the purchase and sale of certain securities which were number listed on any stock exchange. For the purpose of this case these companytracts have been regarded as ready-forward transactions or buy-back transactions. The parties are agreed, and it is on this basis that the High Court also proceeded. That the nature of such a transaction is that it companysists of two inter-connected legs, namely, the first or the ready leg, companysisting of purchase or sale of certain securities at a specified price, and the second or froward leg, companysisting of the sale or purchase of the same of similar securities at a letter date at a price determined on the first date. Such ready-forward transactions have, in most cases, been entered into either by execution of a single document or by execution of two documents companytemporaneously, one representing the first or ready leg and the other the forward or second leg. On such companytacts being entered into the ready leg of the transactions were companypleted with the appellants paying the agreed price and receiving the delivery of the securities which were agreed to the purchased. Before the forward leg of the transactions companyld be companypleted, a Special companyrt Trial of Offences relating a transactions in securities Ordinance 1992 was issued on 6.6.1992 which was subsequently replaced by the Act. Special Courts Act. 1992 The necessity for issuance of the said Ordinance is companytained in the statement of objects and reasons which reads as follows In the companyrse of the investigations by the Reserve Bank of India, large scale irregularities and malpractices were numbericed in transactions in both the Government and other securities, indulged in the some brokers in companylusion with the employees of various banks and Financial institutions. The said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. To deal with the situation and in particular to ensure the speedy recovery of the huge amount involved to punish the guilty and restore companyfidence in and maintain the basic integrity and credibility of the banks and financial institutions the Special Court Trial of Offences Relating to Transactions in Securities Ordinance. 1992 was promulgated on the 6th June 1992. The Ordinance provides for the establishment of a Special Court with a sitting judge of a High Court for speedy trial of offences relating t transactions in securities and disposal of properties attached. It also provides for appointment of one of more Custodians for attaching the property of the offenders for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders. We will refer to some of the provisions of the said Act which are relevant for the purpose of this matter. Section 2 companytains definition. Th term securities is defined in Section 2 c and is as followssecurities includesshares, scrips, stocks, bonds, debentures, debenture stock, units of the Unit Trust of India or any other mutual fund or other marketable securities of a like nature in or of any incorporated companypany or other body companyporate Government Securities and rights or interest in securities. Section 3 of the said act relates to appointment and functions of custodian and reds as follow 3 1 The Central Government may appoint one or more Custodians as it may deem fir for the purpose of this Act. The Custodian may, on being satisfied on information received that any person has been involved in any offence relating to transaction in securities after the Ist day of April, 1991 and on the before the 6th June, 1992, numberify the name of such person in the Official Gazette. Notwithstanding anything companytained in the Code and any other law for the time being in force, on and form the date of numberification under sub-section 2 , any property, movable or immovable, or both belonging to any person numberified under that sub-section shall stand attached simultaneously with the issue of the numberification. The property attached under sub-section 3 shall be dealt with by the Custodian in such manner as the Special Court may direct. The custodian, may take assistance of any person which exercising his powers or for discharging his duties under this section and Section 4. The Custodian has been given power under Section 4 to order the cancellation of any companytract or agreement entered into between 1.4.1991 and 6.6.1992 which, in his opinion, has been entered into fraudulently or to defeat the provisions of the Act. On such cancellation being ordered, the property stands attached under the Act. Special Court is established under Section 5 by the Central Government issuing the numberification to the effect. Section 11 deals with the discharge of liabilities and reads as follows 11 1 Notwithstanding anything companytained in the Code and any other law for the time being in force, the Special Court may make such order as it may deem fit directing the order as it may deem fir directing the Custodian for the disposal of the property under attachment. The following liabilities shall be paid or discharged in full, as far as may be, in the order as under - a all revenues, taxes, cesses and rates due from the persons numberified by the Custodian under sub-section 92 of Section 3 to the Central Government or any State Government or any local authority b all amounts due from the person so numberified by the Custodian to any bank or financial institution or mutual fund c any other liability as may be specified by the Special Court from time to time. Section 13 provides that the provisions of the Act will have an overriding effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any Court Tribunal or other authority. As is evident from the above the intention of framing the aforesaid Act was to protect the interest of the banks and financial institutions from irregularities and malpractices which had been companymitted by some brokers in companylusion with employees of various banks and financial institutions. The important feature of the Act was the attachment of the properties of the offenders with a view toe prevent its diversion. The special Court is required to pass orders directing the disposal of the properties under Attachment. Sub-section 2 of Section 11 provides for the priorities in which the liabilities of the numberified person are to be discharged from out of the attached properties. Considering that the act has been passed because of the diversion of funds from the banks and financial institutions to individual accounts of certain brokers, the implication of Section 11 2 3 clearly is that after the discharge of the liabilities under Section 11 2 a , the amounts which are paid to the banks would probably be those funds which were diverted from the banks by reason of mal-practices in the security transactions. In other words, the losses cause to the banks and the financial institutions were to be made from out of the assets of the numberified persons. At this stage, it will be relevant to see as to what is the position of the Custodian. Section 4 of the Act gives the custodian the power to cancel such companytracts or agreements which have been entered into fraudulently. That apart, he is merely a custodian of the properties of the numberified persons which stand attached under the Act and such properties are to be dealt with by him such manner as the Special Court may direct. The Act shows that the Custodian has three main function to perform. Firstly he has the authority to numberify a person under Section 3 2 who has been involved in any offence relating to transactions in securities during the period 1.4.1991 to 6.6.1992. Secondly he has been given the authority by Section 4 to cancel companytracts or agreements relating to the properties of the numberified persons which, in his opinion, have been entered into fraudulently or for the purpose of defeating the provisions of the Act. Lastly he is required to deal with properties in the manner as directed by the Special Court. To put it simply the Custodian is required to assist in the attachment of numberified persons property and to manage the same thereafter. The properties of the numberified persons, whether attached or number, do number at any point of time, vest in him. He is merely a Custodian and his position is number like that of a Receiver under Civil Procedure Code Section 94 Order 44 or an official receiver under Provincial Insolvency Act or official assignee under Presidency Insolvency Act. There is numbervesting of the attached properties of the numberified persons in the custodian. This is companytract with Section 28 2 of the Provincial Insolvency Act and Section 17 of the Presidency Insolvency Act. There is vesting in the official receiver of official assignee. He is also number in a position of a an official liquidator under the Companies Act in whom number only the property vests but who is also in companytrol thereof. This being so there is companysiderable force i the companytention of the companynsel for the appellants that, except for the power exercisable under Section 4, the position of the Custodian the same as that of the numberified person himself. Pursuant to the promulgation of the Ordinance in 1992. Mr. Justice Variava of the Bombay High Court has been companystituted as a Special Court at Bombay. this companyrt has been hearing several matters brought before it by the Custodian as well as other parties. INITIATION OF PROCEEDINGS AND DECISION OF THE SPECIAL COURT The custodian filed applications before the Special Court to the effect that the above mentioned companytracts entered into between the banks and the numberified person were void. It was companytended that such ready-forward transactions were illegal under the provisions of the Banking Regulation act 1949 and the Securities Regulation Act 1956. It was therefore, companytended that as the companytracts were void those securities which had been sold to the appellants in the ready leg companytinued to be, in law, the properties of the numberified persons on the date they were so numberified and the same stood attached under Section 3 3 of the Act. The applications required the Special Court to direct the appellant banks to return the said securities. Similar applications were also filed, subsequently, by Sh. Harshad Mehta, one of the numberified parties, with whom such transactions had been entered into by some other appellant banks. Resisting the applications the appellant banks had, inter alia. companytended that the transactions in question were numberillegal and did number companytravene the provisions of Banking Regulation Act, 1949 and the circulars issued by the Reserve Bank of India thereunder and number were they companytrary to the provisions of the Securities Contract Regulation Act, 1956 and the numberification issued under Section 16 thereof. It was further companytended that in any case the companytracts in question were severable and the illegality, if any, was attached only to the second leg and number to the first let. The transfer of tile had taken place in favour of the appellant banks and the securities did number belong to the numberified persons and as such they companyld number be regarded as being attached under Section 3 3 of the Act. It was also submitted that, assuming that the entire companytract was illegal and void, neither the Custodian number the numberified parties companyld ask for the relief sought for as both the parties to the companytract were in pari delicto. It was also companytended that in the event the companyrt was to order the return of the securities when the numberified parties should be directed to return the companysideration received by them. The Special Court heard the applications only on the points of law without going into the facts of any case. The case proceeded on the assumption that the appellants had entered into ready forward transactions it was accepted by the parties before the Special Court that the ready-forward transaction or as sometimes described as a buy-back transaction had four ingredients i there must be a present sale or purchase with the companymitment to repurchase or resale in further ii the companytract must be between the same parties iii it must be between of some kind of securities and for the same quantum of securities and iv the transaction must be entered into on the same day or companytemporaneously and the price of resale and repurchase would be fixed at the state of first leg itself. The Special Court by a companymon judgment proceeded to decide the general questions of law which arose by regarding the transactions in question to be ready-forward transactions. It took number of the companycession on behalf of the companynsel for the Custodian that if a transfer had already taken place prior to the date of the numberification then the companycerned property companyld number be properly regarded as belonging to the numberified persons and would number stand attached. It allowed the applications of the respondents holding that the circulars issued under the Banking Act were binding and, since the transactions were companytrary thereto, the same were illegal and void in respect of the third parties. It rejected the companytention that the companytract was severable and that the first leg was number hit by the illegality. It further came to the companyclusion that the companytracts were also illegal under the provisions of the Securities Regulation Act, 1956 and the numberification issued under Section 16 thereof. It also came to the companyclusion that the principles of in pari delicto did number companye into play in present case as the Custodian was number making any claim in the applications but was merely bringing to the attention of the companyrt the fact that third parties were in possession of properties which stood attached under the provisions of Act of 1992. The fact that the Custodian had number exercised any power under Section 4 of the Special Courts Act, in respect of these transactions, was also taken numbere of . Having companye to the companyclusion that the companytracts were void, the Court held that the claim of the banks for restitution will have to be dealt with as an ordinary claim against the property of a numberified person at the stage of distribution under Section 11. It accordingly directed the banks to return the securities to be Custodian. while giving this direction it further observed that if these securities had been transferred by the banks to third parties then numberright companyld be created in their favour as the banks had numberright to transfer them and, therefore, the banks should purchase the securities of the same value from the market and deliver the same to the custodian. The appellant banks have challenged, in these appeals, the companyrectness of the aforesaid decision of the Special Court. The companytentions raised before the Special Court were reiterated by the learned companynsels for the appellant banks while Mr. Jethmalani on behalf of Harshad mehta supported the decision of the Special Court. The Solicitor General, appearing on behalf of Reserve Bank of India addressed arguments with regard to the effect of the circulars issued by the Reserve bank of India on the companytracts in issue. Having heard very lucid arguments of the learned companynsels for the parties, we numberpropose to deal with these companytentions which are necessary for deciding these appeals. RE ALLEGED VIOLATION OF THE CIRCULARS ISSUED BY THE RESERVED BANK OF INDIA With regard to the finding of the Special Court that the transactions in question were illegal, as they were in companytravention of the circulars which were issued by the Reserve Bank of India under the provision of The Act, it was companytended by Mr. Cooper, learned companynsel, that the circulars issued were numbermore than guidelines which were required to be followed by the Bank and they were number mandatory in nature. Elaborating this companytention, Mr. Copper submitted that the Banking companypanies Act companytains provision which enable the Reserve Bank of India issue directions which were mandatory and also give advice to the banks. Our attention was drawn to Sections 21 and 35A of the said Act and it was companytended that the directions which are issued by the Reserve Bank of India under these two provisions are clearly mandatory. On the other hand, Section 36 1 a 1 b gives power to the Reserve Bank of India to give advice of lend assistance and any action taken thereunder cannot be regarded as mandatory. It was submitted that the language of the circulars dated 14.4.1987 and 1.12.1987, which prohibit the banks from entering into buying back arrangements, clearly shows that the said circulars were only in the nature of advice and must be regarded as having been issued under Section 36 1 a and 1 b of the Act. At this juncture, it will be appropriate to refer to the said circulars dated 15.4.1987 and 1.12.1987. The Circular dated 15.4.1987 was marked companyfidential and was issued to all scheduled companymercial banks and dealt with the question of buy-back arrangement in Government and other approved securities entered into by companymercial banks., The relevant portion of this circular reads thus Buy-back arrangements in government and other approved Securities entered into by companymercial banks, Please refer to paragraph 10 a of Governors letter No. CPC. BC. 84/279A-87 dated 31st March, 1987. It has been observed that banks often enter into by back arrangements in respect of Government and other approved Securities among themselves and with their large public sector and companyporate clients. The banks are advised respect of their by-back arrangements with banks and others. Prohibition against by-back arrangements in respect of Corporate Securities and Bond issued by Public Sector Undertakings. Bank should number enter into by-back arrangement in respect of their holdings of public sector bonds of companyporate shares and debentures. By-back arrangements in Government and other Approved Securities with number-bank clients. The buy back deals should be exclusively companyfined to Government and other Approved Securities and the re-purchase date should be fixed after a minimum period of 30 days from the date of sale of the securities in question. ii The purchase sale pries under the arrangement should be in alignment with the proximate market rates prevalent on the date of the original transaction for the relevant Government and other Approved Securities. iii No sales of Government and other Approved Securities under the arrangement should be effected by banks unless the same are actually held by them on their own investment portfolio either in the form of actual scrips or in SGL account maintained with Reserve Bank. iv Immediately on sale, the companyresponding amount should invariably be deducted from the investment account of the bank and its SLR assets for the entire period minimum 30 days of holding by the purchaser companynter-party. Interest on the securities at companypon rates would be paid by the banks after reduction of tax on the lines indicated in our circular No. DBOD.BP.PC 88/C.469 81-B -86 dated 14 August. 1986. A companyy of this circular may please be placed before the Board of Directors for their information. Under advice to us. Please acknowledge receipt. Emphasis added The letter of December 1. 1987 issued by the Reserve Bank of India was also addressed to all scheduled companymercial banks and was as follow Buy-back arrangements in units of Unit Trust of India UTI We have received inquires from banks where they can enter into buy-back arrangement in units of UTI under 1964 Scheme. We have examined the matter and have to advise that the units are number approved security for buy-back arrangement in terms of the instructions companytained i out circular DBOD. No. DIR. BC. 42/C.347-87 date 15th April, Please acknowledge receipt. Emphasis added Referring to the language used in the said circulars dated 15.4.1987 and 1.12.1987. It was companytended by Mr. companyper that the banks were mainly advised to follow the guidelines companytained in the said letters and that the companytents thereto were number binding on the banks. Section 21 of the Banking Companies Act, and subsection 2 in particular, entitles the Reserve Bank of India to give directions to the banking companypanies with regard to the matters specified in the said section. Subsection 3 provides that every banking companypany shall be bound to companyply with any directions given to it under the said Section. Section 35 A i also companytains the power of the Reserve Bank of India to give directions and the same reads as under 35A 1 where the Reserve Bank is satisfied that- a in the public interest or aa in the interest of banking policy or b to prevent the affairs of any banking companypany being companyducted in a manner detrimental to the interests of the depositors of in a manner prejudicial to the interests of the banking companypany or c to secure the proper management of any banking companypany generally It is necessary to issue directions to banking companypanies generally or to any banking companypany in particular it may, from time to time, issue such directions as it deems fit, and the banking companypanies or the banking companypany, as the case may be, shall be bound to companyply with such directions. There can obviously be numberdoubt, as is evident from the plain reading of the said provisions, the directions issued under Sections 21 and 35A are binding on the banking companypanies. Section 36 1 a and b , on which reliance is placed, reads thus The Reserve Bank may - a caution or prohibit banking companypanies generally or any banking companypany in particular against entering into any particular transaction or class or transactions and generally give advice to any banking companypany b on request by the companypanies companycerned and subject to the provisions of section 44 A assist as intermediary or otherwise in proposal for the amalgamation of such banking companypanies. Emphasis added Referring to Section 36 1 a , we find that it empowers he Reserve Bank to Caution or prohibit the banking companypanies from entering into any particular type of transaction or generally to give advice to the said banking companypanies. This provision number only enables the Reserve Bank to assume an advisory role but it also gives it any power to prohibit a banking companypany against entering into any particular transaction s or class of transaction. The use of words caution or prohibit in Section 36 1 a clearly implies that when the Reserve Bank of India Prohibits the Banking companypanies from entering into any particular transaction then the Reserve bank of India Prohibit the banking companypanies from entering into any particular transaction then such a direction which is issued would be binding on the banks and has to be companyplied with. While the Reserve Bank of India has the power, under Section 36 1 a of the Act, to give advice or to caution the banking companypanies which may number be binding on the banking companypanies, but when the Reserve Bank prohibits the banking companypanies against their entering into any particular transaction or class of transactions, the said prohibition has to be regard as being binding. The power to prohibit, given by Section 36, will be meaningless if it was number mean to be binding on the baking companypanies. It is numberdoubt true that the circular dated 15.4.1987 states that the banks are advised to follow the guidelines given thereunder, but paragraph 2A of the said Circular clearly companytains the prohibition relating to the buy-back arrangements. Similarly, under paragraph 28, which is applicable in the present case, by use of the words should be the circular clearly implies that the direction companytained thereunder is meant to be binding. The word advised used in paragraph 2 of the first circular cannot be read in isolation. Reading the said circular, as a whole, it can leave numberdoubt in any ones mind that what was stated in the said document was meant to be binding on the banking companypanies and, was number merely an advice or a caution which companyld be ignored. It was then submitted that even if it is held that the said circulars were binding they companyld only bind the banks and number the third parties. The submission was that by companytravening the direction companytained in the said circulars, the companytracts which were entered into between the banks and the third parties companyld numberbe invalidated and the only result of such companytravention would be the levy of penalty under Section 46 of the said Act. It is number in dispute that the said circulars which have been issued were number made public. The said circulars were companyfidential documents and required the banking companypanies to transact their businesses in a particular manner namely they should number enter into any buy-back companytracts which were number according to the terms of the circulars. The Act itself does number provide that, where the directions issued by the companyfidential circulars are violated by the bank, the companytracts entered into with the third parties would in any way be invalidated. The said circulars also, did number say that the companysequence of the directions companytained therein number being followed by the Banking Companies will result in such transaction being regarded as void. Indeed, numbersuch stipulation companyld be made which would adversely affect third parties to whom numberdirection have been or companyld be issued and who were number aware of such directions issued to the banks. It will be appropriate at this stage, to companysider the decision of this Court in the cause of SETH BANARASI DAS. VS. THE CANE COMMISSIONER ANOTHER, 1963 SCR Supp. 760. In that case an agreement was entered into between the appellant and the cane marketing society for supply of sugar cane. The appellant claimed that there was short supply or sugar cane and the society moved that Cane companymissioner for arbitration. These proceedings were sought to be challenged by the appellant by companytending that the Cane Commissioner and numberright to assume the office arbitrator in this dispute because numbervalid agreement had been entered into between the parties, as companytemplated by Section 18 2 of the Uttar Pradesh Sugar Factories Control Act, 1938 and in the form XII as prescribed under the rules made thereunder. It was also companytended that there were some blanks which were left to be filled in the prescribed form and it also did number have the signature of any representative of the sugar mill. On behalf of the appellant it was companytended in this Court that the Provision of Section 18 2 of Utter Pradesh Sugar Factories companytrol Act were mandatory and had to be followed to the letter. Inasmuch as the Act and the Rules prescribed a penalty for breach of a the appellant may be guilty and companyld be punished but, it was submitted, the mandatory provision number having been followed numbervalid companytract companyld companye into existence and, companysequently, the Cane Commissioner had numberjurisdiction proceed in the matter for appointment of an arbitrator. While repelling the companytention, this Court at page 780 observed as follows This rule has been applied in many cases both in India and in England. In State of U.P. V. Manbodhan Lal Srivastava, this Court observed that numbergeneral rule can be laid down but the object of the statute must be looked at and even if the provision the worded in a mandatory form, if its neglect would work serious general inconvenience of injustice to persons who have numbercontrol over those entrusted with the duty and at the same time would number promote the main object of the Legislature, it is to be treated only as directory and the neglect of it though punishable would number affect the validity of the acts done. These observation have been followed in other cases and recently in Bhikraj V. Union of India, it was observed that where a statute requires that a thing shall be done in a particular manner or form but does number itself set out the companysequences of number-compliance the question whether the prescription of law shall be treated as mandatory or directory companyld only be solved by regarding the object, purpose and scope of that law. If the statute is fund to the directory a penalty may be incurred for number-compliance but the act or thing done is regarded as good. It is unnecessary to multiply these cases which are based upon the statement in Maxwell which is quoted over and over again. It will also be useful to refer to the decision of the High Court of Australia in the case of Yango Pastoral Company Pvt. Limited and others Vs. First Chicago Australia Limited and other 1978, 139 C.L.R. 411 where mason, J. Made observations in this regard. That was a case where Section 8 of the Banking Act, 1959 prohibited a body companyporate from carrying on the business of banking without a license. The question arose whether a mortgage and guarantees given to a unlicensed companyporation in the companyrse of carrying on business were void or unenforceable. The High Court unanimously held that numberhing in the statute made them void and that the separate question of illegal performance should be determined by examining the terms of the statute to determine the impact of illegality on the enfoceability of the companytract. At page 428, it was observed as follows The weighing of companysiderations of public policy in the case dn the decision in favour of enforcing the companytract is influenced by the from of the particular legislation. In this case the Act, as I have mentioned, is to a large extent directed to aiding the Government in executing its fiscal policy rather than regulating the relationship between banker and customer per se, a feature which lends support for the view that the provision of a large recurrent penalty for offences against Section 8 is Parliaments determination of the companysequences of breach of the section and as the only legal companysequences thereof. There is much to be said for the view that once a statutory penalty has been provided for an offence the rule of the companymon law in determining the legal companysequences of companymission of the offence is thereby diminished-see may judgment in Jackson Vs. Harrison, 1978 138 C.L.R. 438, at P. 452. See also the suggestions that the principle cannot apply to all statutory offences Beresford Vs. Royal Insurance Co. Ltd. in the Court of Appeal 1937 2 K.B. 197, at p 22, per Lord Wright Marles Philip Trant Sons Ltd. 1954 1 Q.B. 29, at p. 37, per Denning J, and that it would be a curious thing if the offender is to be punished twice, civilly as well as criminally st. John Shipping Corporation Vs. Joseph Rank Ltd. 1957 1 Q.B. 267, at p. 292, per Devlin J. . The main companysiderations from which the principle ex turpi causa arose can be seen in the reluctance of the companyrts to be instrumental in offering an inducement to crime or removing a restraint to crime Beresfords Case 1938 A.C. at pp. 586 Amicable Society Vs. Bolland 1830 4 Bligh N.S 194 at P. 211. However, in the present case Parliament has provided a penalty which is a measure of the deterrent which it intends to operate in respect of number-compliance with Section 8. In this case it is number for the companyrt to hold that further companysequences should flow, companysequences which in financial terms companyld well far exceed the prescribed penalty and companyld even companyceivably lead the plaintiff to insolvency with resultant loss to innocent landers or with resultant loss to innocent lenders or investors. In saying this I am mindful that there companyld be a case where the facts disclose that the plaintiff stands to gain by enforcement of rights gained through an illegal activity far more than the prescribed penalty. This circumstance might provide an sufficient foundation for attributing a different intention to the legislature. It may be that the true basis of the principle is that the companyrt will refuse to enforce a transaction with a fraudulent or immoral purpose Bereford Vs. Royal Insurance Co. Ltd. 1937 2 K.B. 197 at p. 220. On this basis the companymon law principle of ex turpi causa can be given and operation companysistent with , through subordinate to, the statutory intention, dying relief in those cases where a plaintiff may otherwise evade the real companysequences of a breach of statutory prohibition. Emphasis added The aforesadi principles will clearly be applicable in the present case as well. The number-compliance of the directions issued by the Reserve Bank may result in prosecution or levy of penalty under section 46, but it cannot result in invalidation of any companytract by the bank with the third party. If the companytention of the Custodian is accepted it will result in invalidation of agreements by the banks, even where the third parties may number be aware of the direction which are being violated. To give an example if the Reserve Bank by companyfidential circulars fixes the limit in excess of which the banks cannot give any lone but, without informing the third party, the bank while exceeding its limit gives a loan which is then utilised by the banks customer. It will be inequitable and improper to hold hat as the directions of the Reserve Bank had number been companyplied with by the bank, the grant of loan cannot be regarded as valid and, as a companysequence thereof, the customer must return the amount received even though he may have utilised the same in his business. Yet another instance may be where the bank advance loan by charging interest at a rate lower than the minimum which may have been fixed by the Reserve Bank, in a direction issued under Section 36 1 a . As far as the customer is companycerned, it may number be aware of the direction fixing them minimum rate of interest. Can it be said, in such a case, that the advance of loan itself was illegal or that the bank would be entitled to received that higher rate of interest ? In our opinion it will be wholly unjust and inequitable to hold that such transactions entered into by the bank with a customer. which transactions are otherwise number invalid, can be regarded as void because the bank did number follow the directions or instructions issued by the Reserve Bank of India. The instructions which were issued by the said circulars were meant to companyplied with by a banking companypanies only and did number purport to, number companyld they, be binding on the third parties. This being so, even if the appellant banks had been prohibited from entering into the buy-back arrangement in question, that by itself, would number invalidate the companytracts though the infringement of the said directions may lead to action being taken under Section 46 of the Act. SUBMISSIONS OF THE PARTIES On 27.6.1969 the Government issued a Notification under Section 16 1 of the Securities Contracts Regulations Act, 1956 which is as follows O. 2561. in exercise of the powers companyferred by sub-section 1 of Section 16 of the Securities Contracts Regulation Act, 1956 42 of 1956 the Central Government being of opinion that it is necessary to prevent undesirable speculation in securities in the whole of India, hereby declares that numberperson in the territory to which the said Act extends, shall have which the permission of the Central Government enter into any companytract for the sale or purchase of securities other than such sport delivery companytract or companytract for cash or hand delivery or special delivery in any securities as is permissible under the side Act and the rules, bye-laws and regulations of a recognised block exchange Provided that companytract other than a spot delivery companytract or companytract for cash or hand delivery or special delivery in any securities on the Cleared Securities List of a recognised stock exchange may be entered into between its members of through or with any such member for the purpose of closing out or liquidation all existing companytracts entered into upto the date of this numberification and remaining to the performed after the said date, but such companytract shall be subject to recognised stock exchange that companye into force when further new dealings are prohibited in any securities on the Cleared Securities List and subject also to such terms and companyditions if any as the Central Government may form time to time impose. As a result of the aforesaid Notification, except for sale of purchase of securities under a spot delivery companytract or companytract for cash or hand delivery or special delivery all other companytracts were prohibited. As a companysequence thereof entering into a forward transaction become illegal. Proceeding on the assumption that the aforesaid numberification applied to the securities in question even though they were number listed on the stock exchange, the companynsel for the appellants submitted that each companytract between the parties. Namely, the numberifies person and that appellant was in two parts, According to this, the securities were sold by the numberified person to the appellant and market price in respect thereof, was paid. The companytract further stipulated that after a period of 14 days on a fixed day, at a fixed price the transaction will be reversed i.e. to say the appellant will sell back the securities, which had been purchased by it, to the numberified person who would pay the price which was agreed to between the parties. Assuming the companytract as numberified date the securities had already been sold by the numberified person to the appellant when the same were delivered to the bank against payment of money. The bank had, thus, become the owner of the securities and on the date the said brokers were numberified person and, therefore, the dame companyld number be attached. On behalf of the Custodian it was submitted by Mr. A.M. Setalvad that the said companytracts were companyposite and unseverable, the illegality attached to the forward element of the companytract rendering the companytract wholly void. While relying upon the Halsbury Law of England IVth Ed. Vol. 19 paragraph 430 it was companytended by Mr. Setalvad that in such a case there can be a numberquestion of severing the illegal part from the legal part. The companyrt, it was submitted, will number re-write or re-arrange the companytract. Furthermore. Even if the part of the companypromise companyld be struck off, the companyrt will number do this if to so would alter entirely the scope and intention of the agreements. It is number necessary to refer to other submissions which where advanced by the companynsel for the parties as, n out opinion the above stated submissions on behalf of the appellants merit acceptance. ARE THE READY-FORWARD TRANSACTIONS SEVERABLE We will first deal with the submission that the agreements in question were severable and ht illegality attached to the forward leg cannot effect the ready leg of transaction. Mr. Chagla, appearing for ANZ Grindlays Bank while assuming that the ready-forward transaction was one companyposite transaction, submitted that the same was several into two parts each of which had separate companysideration and a separate object. He submitted that provisions of Section 57 of the Contract Act were applicable to the present case and the first set of promises or the ready leg would companystitute a binding companytract while the second leg, namely , the forward leg would be void. In support of this companytention reliance was placed on a decision of the Full Bench of the Nagpur High Court in Asaram and Ors. Vs. Ludheshwar and Ors. AIR 1938 Nagpur 335 . In that case a joint family was indebted to the defendants. It had proprietory share in land to which the provisions of the Central Provinces Tenancy Act applied. According to Section 49 of the said Tenancy Act alienation of sir land, that is home farm land in cultivation, was ineffective unless the sanction of appropriate official had first been obtained. Section 49 of the said Tenancy Act postulated that if a proprietor lost his right to occupy any portion of the sir land as a proprietor he shall, as from the date of the losss, become an occupancy tenant of such sir land. In order to alienate the interest in the said land a device was adopted to circumvent the provision of Section 49 of the said Act. On 14th April, 1923 two deeds were executed by the father of the appellants. By the first deed the proprietory right in the said land was sold for a sum of about Rs. 7367/- the appellants predecessor in interest relinquished their occupancy rights in the sir land. The appellants challenged the validity of the aforesaid deeds executed by their predecessors in interest and filed a suit for transfer of the land in question, inter alia, on the ground that the aid transactions were companytrary to the provisions of Section 49 of the Tenancy Act and was, therefore, void. Taking numbere of the fact that the Act did number prohibit the transfer of the proprietory interest, because on such transfer the proprietor becomes and occupancy tenant of the sir, the Full Bench companysidered whether, in such a case, Section 24 of the Contract Act become applicable. While dealing with the case where the companytract companysisted of legal and illegal parts Mr. Justice Vivian Bose at page 343 observed as under - Therefore if this transaction had companysisted of a single companysideration for the two objects companytemplated, namely, the sale of the proprietary rights as distinguished from the occupancy rights together with the occupancy right which we usually somewhat inaccurately call cultivating rights in these Provinces , then the whole have fallen to the ground under this section unless the transferee had been companytent to accept the proprietary rights alone for the entire companysideration and forgo the occupancy rights. But since the transaction companysists of two separate companysiderations for two severable objects we are left with a companytract companysisting of legal and illegal parts in which the lawful is separable from the unlawful. In such a case it is always possible to give effect to the lawful and reject the unlawful in fact the is what the Courts are bound to do unless the whole transaction is prohibited by statue or unless it involves serious moral turpitude or is otherwise against public policy. See S 57 and 58, Contract Act. This rule was applied and in my opinion rightly, to this very class of cases in 27 N L R 113 at p. 115 and 22 N L R 136 at P. 141. As I have said the whole transaction in this case is number prohibited by statue on the companytrary the part of it relating to the transfer of the proprietary rights is expressly allowed. Therefore under this rule since the companysiderations are separable that portion can, in may option, be enforced and it is only surrender which is of numbereffect Section 57 applies to cases where two sets of promises are distinct. When the void part of an agreement can be properly separated from the rest, the latter does number become invalid. The ready-forward transaction companysists of two parts. In the ready leg there is a purchase or sale of securities at a stated price which in executed on payment of companysideration for the spot delivery of the security certificates together with transfer forms. The full and absolute ownership of the title in securities vests in the purchaser, the entire property in the security passing immediately upon such delivery and payment. The seller is divested of all the rights, title and interests in the said securities. The forward leg is to be performed at a later date on the stated price being paid. The securities are to be delivered beck when the title in interest therein would pass to the original seller. It is clear that such a readyforward transaction companysists of a set of reciprocal promises. The first set of promises were fully executed, but the second set remained executory. Section 57 of the Contract Act would thus be attracted to the present case, the effect of which would be that the first set of promises would companystitute a binding companytract but the second or the forward leg would be void and unforceable. Neither the object number the companysideration of the ready leg is illegal, unlawful or prohibited under section 23 of the Contract act. the forward leg is neither the companysideration number the object for entering into the ready leg. At best it may be that the forward leg provided the parties with the motive for entering into the companytract but that would number affect the severability of the forward leg. Which alone is declared illegal under the Securities Control Regulation Act. Mr. Chagla also relied on the decision in SEC V. Drysdale Securities 785 F 2d 3 FED SEC L Rep. p 92, 487 at 92, Col 2. The US Court of Appeal had an occasion to deal with such a ready - forward companytract In the case a broker entered into sale and re-purchase agreements more Commonly known there as Repos . These agreements were structured as sales of securities by broker subject to an agreement to repurchase them. from the other party, at a fixed price at a later date. The broker also entered into reverse sale and purchase agreement reverse repos whereby he purchased government securities subject to an agreement to re-sell them, to the other party at a fixed price at a later date. The repos and reverse repos were thus description of the same transaction viewed from different sides. One of the questions which came up for companysideration was whether such a transaction companyld be regarded as being a funding agreement or was it in the nature of a loan against companylateral security. It was held by the US companyrt of Appeal that there was a significant different between repos and standard companylaterised loans. It was observed that in the latter transaction . the lender holds pledged companylateral for security and may number sell it in the absence of a default. In companytrast, repo lenders take title to the securities received and can trade, sell or pledge them. The repo merely imposes a companytractual obligation to deliver identical securities on the settlement date set by the repo companytract and then proceed to hold that the secured lender in a repo is free to deal the companylateral. In the present case also some of the banks which had purchased the securities had sold them. There was, at numberpoint of time, any stipulation between the parties that the banks companyld number trade in securities which have been purchased by them. The obligation to re-sell the securities to the numberified person, in the forward leg of the agreement, companyld be fulfilled by the purchase by the appellants of the securities from the market and then to sell them to the numberified persons, in order to companyplete the forward leg. The trading in the securities purchased by the banks in the ready leg was number in companyflict with any law. The appellants were free to deal with them. This would show that with the first or the forward leg of the transaction being companypleted the banks had become the absolute owners of the said securities and they companyld deal with them in any manner in which they liked. There was numberhing in the terms of readyforward transaction which prohibited the banks, if they had sold the securities, from purchasing the securities of the same value from the market an selling the same to the broker in order to companyplete the second or the forward leg of the transaction . This will itself show that the two legs of the transaction are severable. It was companytended by Mr. Setalvad that being a companyposite companytract there can be numberseverance of the same. But the question of severance will arise only in the case of a companyposite agreement companysisting of reciprocal promises. It is only in such a case that the companyrt has to see whether the companytract is such that the illegal or void part of the transaction can be severed. This is clearly evident from the decision in the case of Ram Sarup Vs. Mussumat Bela and ors. Vol. XI Indian Appeals 44 . There the Privy Council dealt with a case whether a person - Hearseyhad gifted certain properly owned by him to his second wife, generally called Vilayati Begum, and her three children on the companydition of the wife obeying her husband and the children remaining faithful to their religion. There were decrees obtained by the predecessor in interest of the appellant against the said Hearsey. In execution thereof the transfer of the aforesaid property by Hearsey was inter alia challenged by suit being instituted by the decree holder challenging the gift by Hearsey on the ground that the said transaction was invalidated by the immorality of the companysideration . It the transaction was invalidated then the property would have companytinued to belong to Hearsey and would have been available in order to satisfy the decree against him. It was companytended before the Privy Council that by reason of Hearseys decent and religion the case was to be governed by rules of English law and that the Begum companyld number be his lawful that the stipulation as to her companytinuing to act as his wife was immoral though she was under Mohammedan law, which allowed sexual relations forbidden to Christians an that the gift was so thoroughly vitiated as to leave Hearsey, the grantor, still the owner of the properly in such a sense that the plaintiff companyld treat it as his right, title and interest liable to be sold under an attachment. While upholding the decision of the companyrts below in treating the gift to the Begum as resting on the valid and moral companysiderations, it was observed by the Privy Council as follow- Their Lordships are of opinion that the gift is in fact unconditional, because, as it was companyplete at the time when the actual transfer took place the parties companyld number after words import a companydition and the petition must be treated as inefficacious for that purpose. But even if it were otherwise assuming a companydition, and an immoral companydition - it would be the companydition that is immoral and number the companysideration and then the case would fall under the general rule of law that gift to which an immoral companydition is attached remains a good gift. While the companydition is void. Emphasis added In the case of a ready-forward companytract the stipulation to re-transfer the securities, on a later date, can only be regarded as companydition precedent and it is only this part companydition which will fail. It is number possible to accept the companytention of Mr. Setalvad that severing the agreements into two parts would amount to re-writing or re-arranging the companytract. We are here dealing with a case where there was one agreement. But which envisaged two sale transaction. Execution of each transaction envisaged the transfer of title in the securities. The valid part the ready leg of the transaction has been companypleted while the invalid part forward leg has to be ignored. What numberification issued under Section 16 did was to prohibit the entering into of a forward companytract, i.e., sale at a future date for a fixed price. It expressly permitted sale of securities by spot delivery which, in the present case, is represented by the ready leg. It is only the further sale or the re-sale of the securities at a later date which the numberification did number permit. This latter part of the agreement companyld number have been entered into and is clearly severable and cannot effect the transfer of the title which had already taken place at the time of the execution of the ready leg. This being so the securities which had been purchased by the appellants from the numberified persons companyld number be attached. POSITION IN LAW IF THE TRANSACTION ARE NOT SEVERABLE Even if it be assumed that the agreement were number severable, and they were companyposite agreements even then the ready leg having been performed, the position in law is that the illegality of the agreements cannot affect the transfer which had already taken place. Reference may first be made to the decision of the Privy Council in Sajan Singh Vs. Sardara Ali 1960 A.C. 167 . In that case the regulations which had been framed provided that numberperson companyld use or sell a motor vehicle for the carriage of goods without a haulage permit. Six motor vehicles were purchased by the appellant. The respondent paid part of the companysideration towards the companyt on the understanding that one of the vehicles, a dodge motor lorry, would become his property. The appellant executed a document of sale stating that he had sold the motor lorry jointly to the respondent and his friend, whose share the respondent subsequently purchased. Although the lorry was owned and operated by the respondent for the carriage of goods on his own account, the appellant registered the lorry in his own name and obtained a haulage permit which authorised its use by himself and him employees. The policy of the authority at the time was to restrict the issue of permits to persons who had them before the war. The respondent did number fall within that category, whereas the appellant did and that is why the permit was in the name of appellant but the lorry was paid for and operated by the respondent. In 1955, the appellant removed the lorry from the to return it. A suit was filed by the respondent plaintiff against the appellant defendant for the return of the lorry or its value. While upholding the decision in favour of the respondent, the Privy Council observed as follows Although the transaction between the plaintiff and the defendant was illegal, nevertheless it was fully executed and carried out and on the account it was effective to pass the property in the lorry to the plaintiff. There are many cases which show that when two person agree together in a companyspiracy to effect a fraudulent or illegal purpose-and one of them transfers property to the other in pursuance of the companyspiracy-then, so soon as the companytract is executed and the fraudulent or illegal purpose is achieved, the been transferred by the one to the other numberwithstanding its illegal origin see Scarfe V. Morgan per Parke B. The reason in because the transferor, having fully achieved his unworthy end, cannot be allowed to turn round and repudiate the means by which he did it-he cannot throw over the transfer. And the transferee, having obtained the property, can assert his tile to it against all the would, number because he has any merit of his own, but because there is numberone who can assert a better title to it. The companyrt does number companyfiscate the property because of the illegalityit has numberpower to do so-so it says, in the words of Lord Eldon Let the estate lie where it falls, see Muckleston V. Brown. This principle was applied by the companyrt of Appeal recently Bowmakers Ltd. V. Barnet Instruments Ltd. The parties to the fraud are, of companyrse, liable to be punished for the part they played in the illegal transaction, but nevertheless the property passes to the transferee. In companyclusion it was observed that if the law were number to allow the plaintiff to recover i this case, then it would leave the defendant in possession of both the lorry and the money he had received for it. This, it was observed, was number the law. It was submitted by Mr. Shanti Bhushan that even though the companytract may have been illegal, the transaction of scale was independent of that and did number, in any way, affect the transfer of title in the securities. In support of this submission, reliance was placed on the following observations in Alexander Vs. Rayson, 1936 1 KB 169 where at page 185 it was observed as follows The distinction between an action brought to enforce and unlawful agreement and one brought to assert a right of property already acquired under such and agreement is further illustrated by Taylor V. Chester 4 . The defendant in that case was the keeper of a brothel and as such had supplied wine and supper to the plaintiff for the purpose of being companysumed there by the plaintiff and divers prostitutes in a debauch there, to incite them to ritous, disorderly, and immoral companyduct. When the debauch was over there followed in due companyrse the reckoning. Being unable or unwilling to pay it at once, the plaintiff deposited with the defendant the half of a 501. numbere as security. He subsequently repented of this action, and instituted proceedings against the defendant for the purpose of obtaining the return of the half bank numbere. It was held that he was number entitled to recover. The property of the half numbere had passed to the defendant, and in spite of the illegality of the agreement under which it has passed, the defendant was entitled to keep it. as was said by the KB in Scarfe V. Morgan 5 in a passage quoted by Hannen J. in the companyrse of the argument if the illegal companytract is executed, and a property either special or general has passed thereby, the property must remain. The plaintiff, on the other hand, companyld number maintain his action without asserting and relying upon the unlawful agreement. He companyld number, to use the language Court, recover without showing the true character of the deposit and that being upon an illegal companysideration, to which he himself was a party, he was precluded from obtaining the assistance of the law to recover it back. Emphasis added It would follow that if pursuant to a agreement to do an illegal act a transaction, in part, takes place which would otherwise be valid if there was numbersuch prior agreement, than numberwithstanding the illegality of the companytract the said companypleted transaction itself cannot be regarded as invalid. Tinsley V. Millingan 1993 3 All ER 65 was a case where the parties, who were living together, jointly purchased a house which was registered in the name of the appellant as the sole legal owner. Both the parties accepted that the house was jointly owned but it was registered in sole name of Tinsley so as to enable Millingan, with a knowledge and assent of Tinsley, to make false claims to the Department of Social Security for, some benefits. The money so obtained from the Department was shared between them. Subsequently, the parties quarreled and Tinsley moved out of the house which companytinued to be in occupation of Millingan. Tinsley brought an action claiming possession of the house and asserting ownership of it. Millingan companynter-claimed for an order for sale and a declaration that the house was held by Tinsley on trust for the parties in equal shares. Tinsley companytended, in regard to the companynter claim that applying the companymon law maxim ex turpi cause numberoritur actio, Millingan was barred from denying Tinsleys ownership because the purpose of the arrangement, whereby the house had been registered in the sole name of Tinsley was, to facilitate the fraud on the Department of Social Security and therefore, Millingans claim to joint ownership was tainted by illegality. It was also companytended that applying the equitable principle that he who came to equity had to companye with clean hands, the companyrt ought to leave the estate to lie where it fell since the property been companyveyed into the name of one party for a fraudulent purpose which had then been carried out and in those circumstances the companyrt ought number to enforce a trust in favour of the other party. Tinsleys claim was dismissed by the trial judge, who upheld the companynter-claim of Millingan. The appeal filed by the appellant was dismissed by the Court of Appeal. Lord Jauncey in his speech, observed at page 82 that At the outset it seems to me to be important to distinguish between the enforcement of executory provisions arising under and illegal companytract or other transaction and the enforcement of rights already acquired under the companypleted provisions of such companytract or transaction. Your Lordships were referred to a very companysiderable number of authorities, both ancient and modern, from which certain propositions may be derived. First it is trite law that the companyrt will number give its assistance to the enforcement of executory provisions of an unlawful companytract whether the illegality is apparent ex facie the document or whether the illegality of purpose of what would otherwise be a lawful companytract emerges during the companyrse of the trial see Holman V. Johnson 1775 1 99 LR Lord Mansfield CJ., Pearce V. Brooks 1866 LR 1 Exch 213 at 217-218 1861-73 Allow ER Rep 102 at 103 per Pollock CB, Alexander V. Rayson 1936 1 KB 169 at 182 1935 all Er Rep 185 at 191 and Bownkmakers Ltd. V. Barnet Instruments Ltd. 1944 2 All ER 579 at 582 1945 KB 65 at 70 . Second it is well established that a party is number entitled to rely on his own fraud or illegality in order to assist a claim or rebut a presumption. Thus when money or property children for the purpose of defrauding creditors and the transferee resists his claim for recovery he cannot be heard to rely on his illegal purpose in order to rebut the presumption of advancement see Gascoigne V. Gascoigne 1962 1 KB 223 at 226. Chettiar V. Chettiar 1962 1 All ER 494 A 498, 1970 1 All ER 540 at 543, 1970 p 136 per Salmon LG . Third it has, however, for some years been recognised that a companypletely executed transfer of property or of a interest in property made in pursuance of an unlawful agreement is valid and the companyrt will assist the transferee in the protection of his interest provided that he does number require to found on the unlawful agreement see Ayerst V. Jenkins 1936 1 KB 169 at 134-185, 1935 All ER Rep 185 at 191, Bowmakers Ltd. V. Barnet Instruments Ltd. 1944 2 All ER 579, 1945 KB 65, Sajan Singh V. Sardara Ali 1960 1 All ER 269 at 272-273, 1960 AC 167 at 176 . To extent, at least, of his third proposition of would appear that there has been some modification over the years of Lord Eldon LCs principles. By posing the question whether the respondent in claiming the existence of a resultant trust in her favour was seeking to enforce unperformed provisions of an unlawful transaction or whether she was simply relying on a equitable proprietory interest that she had already acquired under such transaction, Lord Jauncy at page 83 observed as follows- I find this a very narrow question but I have companye to the companyclusion that the transaction whereby the claimed resulting trust in favour of the respondent was created was the agreement between the parties that, although funds where to be provided by both of them, nevertheless the title to the house was to be in the sole name of the appellant for the unlawful purpose of defrauding the Department of Social Security. So long as that agreement remained unperformed neither party companyld have enforced it against the other. However, as soon as agreement was implemented by the sale to the appellant alone she became trustee fro the respondent who can number rely on the equitable proprietary interest which has thereby been presumed to have been created in her favour and has numberneed to rely on the illegal transaction which led to its creation. Speaking for majority, Lord Browne Wilkinson first observed at page 85 as follows Neither at law number in equity will the companyrt enforce and illegal companytract which has been partially, but number fully, performed. However, it does number follow that all acts done under a partially performed companytract are of numbereffect. In particular it is number clearly established that at law as opposed to in equity property in goods or land can pass under, or pursuant to, such companytract. It so, the rights of the owner of the legal title thereby acquired will be enforced, provided that the plaintiff can establish such title without pleading or leading evidence of the illegality. It is said that the to property was acquired as a result of the property passing under the illegal companytract itself. Emphasis added Lord Browne Wilkinson the companysidered the decisions in the cases of Bowmakers Ltd. V. Barnet Instruments Ltd. 1944 2 All ER 579, Feret V. Hill 1854 15 CB 207 1843- 60 All ER Rep 924. Taylor V. Chester 1869 LR 4 QB 309 1861-73 All ER REP 154, Alexander V. Rayson 1936 1 KB 169 and observed at page 86 that From these authorities the following propositions emerge. Property in chattels and land ca pass under a companytract which is illegal and therefore would have been unenforceable as companytract. A plaintiff can at law enforce property rights so acquired provided that he does number need rely on the illegal companytract for any purpose other than providing the basis of his claim to property right. It is irrelevant that the illegality of the underlying agreement was either pleaded or emerged in evidence if the plaintiff has acquired legal title under the illegal companytract that is enough. Even in the minority judgment of Lord Goff the passage from the speech of Lord Denning in Sajan Singh case supra , quoted earlier, was numbered with approval and at page 72, it was observed Even so, the mere fact that a transaction is illegal does number have the effect of preventing property, whether general or special, from passing under it. In Scarfe V. Morgan 1838 4 M W 270 at 281, 150 ER 1430 at 1434 Parke B said that if the illegal companytract is executed, and property either special or general has passed thereby, the property must remain This principle has been applied on numerous occasions. Notable examples are to be found in Taylor V. Chester 1869 LR. 4 QB 309. 1861-73 All ER Rep 154, Alexander V. Rayson 1936 KB 169, 1935 All ER Rep 185 and Sajan Singh V. Sardara Ali 1960 1 All ER 269, 1960 AC 167. It was submitted by Mr. Setalvad that the principle of low enunciated in the aforesaid decisions in England is restricted in its application to cases where the illegal companytract has been performed and does number apply to an illegal companytract which has been performed only in part. He companytended that inasmuch as the ready-forward companytract had only been performed in part, namely, as securities had been transferred under the first leg but the second leg was still to be performed, the principle laid down in the English cases would have numberapplication. This companytention of Mr. Setalvad cannot be accepted because the ratio of the said decisions is applicable even whether an illegal companytract is partially performed as would be evident from the following observation of Lord Browne Wilkinson- Neither at law number in equity will the Court enforce and illegal companytract, which has been partially but number fully performed. However, it does number follow that all acts done under a partially performed companytract are of numbereffect. In particular, it is number clearly established that at low as opposed to equity property, goods or land can pass under or pursuant to such a companytract. Emphasis added It was companytended by the learned companynsel for the respondent, and Mr. Jethmalani in particular, that the decisions of the companyrts in England should number be applied in India, where the validity of the companytract has to be judged according to the statutory law applicable in this companyntry. It was submitted that under the Indian Contract Act the entire companytract was void. The original companytract companyld number be legally entered into and the title in the securities did number, in law, pass to the appellants. While there can be numberdispute the transactions in question have to be viewed in the companytext of the law in this companyntry but the decisions of the companyrt in England, based on companymon law principles, have been applied and followed by the companyrts in India. This will be evident from the fact that the decision in Sajan Singh case, which was approved by the House of Lords in Millingan case, has been followed by this Court in Smt. Surasaibalini Debi Vs. Phanindra Mohan Majumdar 1965 1 SCR 860. In Surasaibalini case the respondent hereinafter referred to as the plaintiff was employed at Calcutta in the Court of Ward and the service rules did number permit him to start of carry on any trade or business or his own. It was, therefore arranged with one Rabinder Mohan Gupta hereinafter referred to as the defendant , that the defendant should be held be held out to be owner of the suit property, which was a Boarding House, of which the plaintiff was a true owner and the e plaintiff was put in its possession as Manager. The plaintiff had to leave Calcutta on medical advice and he put the defendant in possession on the understanding that when the plaintiff returns the defendant would hand over the possession. When the plaintiff returned to Calcutta and asked the defendant to hand over possession, he refused to do so. Thereupon, the plaintiff filed a suit in the Calcutta High Court for a declaration that he was the sole proprietor of the Boarding House, and also for the delivery of possession of the same. The suit was decreed by the trial companyrt, which decision was upheld in appeal. Before this Court it was companytended by the defendants successor in interest, namely, the appellant, that the suit should have been dismissed because the plaintiff admitted in his evidence that he had escaped payment of income tax by submitting a separated return for the salary earned by him in service, and by showing that the business income from the suit property belonged to the defendant and, therefore, the companyrt should number companyntenance his claim and assist him in attaining possession of the suit property because that transaction had been entered into with a view to circumvent or defeat the provisions of the Income Tax Act. The plaintiff, while denying that the transaction was illegal, in the alternative, placed reliance on the aforesadi decision of the Privy Council in Sajan Singh case companytended that the he had equitable interest in property and that the possession of the property should be restored to him. Gajendragadkar, C.J. and Shah, J. referred to the decision in Sajan Singh case but, while dismissing the appeal, held that the transaction of running the Boarding House was number entered into with a view to circumvent or defeat the provisions of the Income Tax Act and was, therefore, number illegal, Rajagopala Ayyangar, J. By separate judgment, Agreed that the appeal should be dismissed he held that from the evidence on record it was clear that the object of the agreement, entered into by the plaintiff, was to defeat the provisions of the Income Tax Act and was number lawful. The learned judge, however, applied the ration of the decision in Sajan Singh case and held that the plaintiffs claim to possession was independent and wholly disassociated from the illegal transaction and for this reason, the appeal should be dismissed. While companying to this companyclusion Iyyangar, J. extracted the above quoted passage from the speech of Lord Denning in Sajan Singh Case and then observed as follow It would thus be seen that besides the claim based on his title to the lorry, the plaintiff had also established that while the chattel was in his possession, the defendant had unlawfully taken it away, with his companysent. Insofar as his claim was based on this deprivation of possession, it was really and independent cause of action wholly separated from the original purchase of the lorry which was to circumvent the law, and as to his claim in detinue there was numberquestion of its being tainted with any illegality. Besides this, Lord Denning himself pointed out that there were many cases which showed that where a transfer of property was effected in order to achieve an illegal purpose and that purpose was achieved, the plaintiff was disabled from recovering the property for the reason that the Court will number assist him in that endeavour. It was rightly submitted by Mr. Shanti Bhushan that the aforesaid principles. Now well settled with the decision s of the House of Lords in Tinsleys case supra , would be applicable in India as well. this is number a case where the appellant is seeking to enforce an illegal companytract. On the other hand, it is Custodian who is referring to the illegality of the companytract with a view to recover possession of the securities, the title of which already stands transferred in favour of the appellant. In the present case the appellants are basing their claim by relying number on the terms of the ready-forward companytract, but on the payment of market price against delivery of the securities. The claim to title is independent of the ready-forward agreement. There can be little doubt that the appellants, when they paid the market price and took delivery of the securities, had become owners of the same. According to Section 5 of the Transfer of Property Act, 1882, transfer of property inter alia means and act by which a person companyveys property to another person. Section 6 of this Act deals with what property may be transferred. What is relevant in Section 6 h according to which numbertransfer can be made 1 insofar as it is apposed to the nature of the interest affected thereby, or 2 for an unlawful object, or companysideration within the meaning of Section 23 of the Indian Contract Act, or 3 to a person legally disqualified to be transferee. According to Section 23 of the Contract Act the companysideration of object of an agreement will be unlawful if it is forbidden by law or is such a nature that, if permitted, it would defeat the provisions of any law or is fraudulent or involves or implies injury to the person or property of another or the companyrt regards it immoral of opposed to public policy. In the instant case the object of the companytracts entered into between the banks and the numberified parties was for the transfer and, subsequently, retransfer of the securities. The transfer took place on delivery of securities. The transfer took place on delivery of securities on payment of market price as companysideration. The companysideration for the transfer of the securities, in the ready leg, was the payment of market price. The validity of the transfer of the securities has to depend on the provisions of the Transfer of Property Act and the Sale of Good Act Relating to transfer and number to the validity of the agreement preceding the transfer. Like any other movable goods the securities companyld validly be purchased on delivery against payment of price as per Section 4, 19 and 20 of the Sale of Goods Act. The price paid, while taking delivery, was the companysideration for the transfer of the securities. When the transfer of title has taken place that agreement between the parties preceding this cannot invalidate the transfer. The ratio of the decisions in Sajan Singh Vs. Sardara Ali and Tinsley Vs Millingan and the observations of Rajgopal Ayyanger, J. in Surasaibalini Debi Vs. P.M. Majumdar supra are clearly applicable in the present case. Inasmuch as, the aforesaid reasons are sufficient for the appeals to be allowed, we do number propose to deal with the other companytentions which had been raised on behalf of the appellants. CONCLUSIONS The following companyclusions from the aforesaid discussion A Infringements of the instructions issued by the Reserve Bank of India under Banking Regulations Act prohibiting the banks from entering into by-back arrangements do number invalidate such companytracts entered into between the banks and its customer. |
GYAN SUDHA MISRA, J. Leave granted. This appeal by special leave has been filed assailing the order dated 27.5.2013 passed by the High Court of Punjab and Haryana at Chandigarh in C.M.No. 3301/2013 arising out of CWP No. 13848/1998 whereby certain adverse directions to be related hereinafter were issued having grave implication on the companytractual rights of the appellant- M s. Soma Isolux NH One Tollway Pvt. Ltd. hereinafter referred to as the Concessionaire companypany as it was saddled with a fine of Rs.60 crores and Rs.7 crores to be paid by the appellant-Concessionaire Company and its Director respectively which were to be deposited with the Registrar General of the High Court within one month of the date of the order. The respondent No.6 National Highways Authority of India shortly referred to as the NHAI was further directed to proceed in the matter forthwith and take possession of the Highway project and ensure that companylection of toll is deposited in a separate account and the work of repairs of the highway companymenced within a week and the work of companystruction of highway companymenced and companypleted within a month thereafter. The High Court further issued direction that the entire matter relating to the companytract, the companypletion of the work of the highway, companylection from tolls without existence of sixlanes be enquired into and a report in that regard be placed before the High Court within three months. It was also made clear that the enquiry shall number be companystrued to be an excuse to delay the companystruction of the highway. It was further observed that the Chairman, NHAI shall be personally responsible for ensuring that the work of six-laning of the highway between Panipat and Jullunder is companypleted within six months failing which the Chairman, NHAI would be held personally liable to pay fine similar to the terms imposed on the Concessionaire Company respondent No.7. The appellant-Concessionaire Company has, therefore, companye up to this Court challenging the impugned order passed by the High Court. The substantial questions of law of general and public importance that emerge for companysideration in this appeal inter alia may be crystallised as follows i Whether the directions issued by the High Court which have far reaching companysequences against the petitioner appellant and which directions by a judicial fiat, has the effect of nullifying the terms of the Concession Agreement dated 09.05.2008 defeating the rights and obligations arising therefrom in a Public Interest Litigation while exercising jurisdiction under Article 226 of the Constitution of India is an act of judicial overreach under the garb of public interest? ii Whether the terms and companyditions of a companycluded companytract can be nullified by the High Court by issuing sweeping directions in an ongoing Public Interest Litigation Petition which renders the terms and companyditions of the Concession Agreement between the companytracting parties redundant at the instance and initiative of the Court itself when such directions has number even been sought by any of the parties to the Public Interest Petition? iii Whether a Bench of the High Court which is seized of a particular dispute would be justified in number taking numbere of the final judgment and order passed earlier by a companyordinate Bench settling the said companytroversy in view of which numberdirection companyld be issued by the High Court nullifying the companytractual rights of the affected party? In order to appreciate and adjudicate the companytroversy involved and to put the matter in proper perspective certain factual background may be related which disclose that this appeal by way of special leave petition has its genesis in a writ petition bearing CWP No. 13848/1998 which came to be filed in the High Court of Punjab and Haryana at Chandigarh as a public interest litigation on 25.7.1998 by the respondent No.1 herein Harish Kumar Puri whose son had died in a road accident on 14.5.1996 at Pipli Chowk, Kurukshetra due to the criminal negligence alleged on the part of the traffic police posted on the said chowk. In the PIL, the respondent No.1 Mr. Puri prayed for issuance of a writ in the nature of mandamus directing for enforcement of traffic rules and to maintain the signal system, rumble strips on crossing, first aid units, companytrol over speeding on G.T. Road National Highway No.1 and a further writ or direction holding the State functionaries liable for the criminal negligence on the part of its employees and saddle it with monetary liability. Interestingly, this writ petition which was filed as a PIL with the laudable object of improving management of traffic on the highway in the interest of the companymuters and the public at large over the years metamorphosed into a long drawn litigation alleging breach of companytractual obligations between the appellant-concessionaire companypany and the respondent No.7 NHAI wherein the respondent Union of India as also the respondent PIL petitioner in the High Court have jumped into the fray giving rise to several rounds of litigation. In the process it affected the very purpose and object for which the writ petition had been filed as also the companystruction of the Highway for which a companycession agreement had been executed between the appellant-concessionaire companypany and the respondent No.6 NHAI by way of a companypetitive bidding process during pendency of the PIL as a step towards resolving the issue of management of traffic. While tracing out the background of the matter, bereft of number so essential factual details, it may be sufficient to state that the Division Bench of the High Court issued numberice of motion on 1.9.1998 in the writ petition PIL which came up before the High Court for companysideration from time to time spanning over several years and finally on 11.4.2002, an order was passed by the High Court on 11.4.2002 for impleading the Secretary to the Government of India, Ministry of Road Transport and Highways, New Delhi when the issue camp up regarding numberopening of the railway bridge near Dera Bassi for the general public. Several years thereafter, numberice was also issued to the National Highways Authority of India NHAI to appear before the High Court through its authorized representative as on 9.5.2008 a Concession Agreement had been executed between NHAI and the appellant-company since the appellant succeeded in a companypetitive bidding process by which it was granted exclusive rights, license and authority to companystruct, operate and maintain its project namely, six-laning of a part of NH 1 from KM 96.00 to KM 387.100 approximately 291.10 KM from Panipat to Jullundur for a period of 15 years. While awarding the companytract, the credentials and track record of the appellant was taken numbere of which indicated that the appellant M s Soma Isolux NH One Tollway Pvt. Ltd. is a joint venture companypany with Isolux Corsan Group which is a multinational companypany having vast experience of Infrastructure Development in various part of the world including Europe, South America, North America and Asia and has successfully developed Highway Projects in various companyntries including Spain, Mexico, Brazil, India etc. Isolux Corsan Group is the leading European Investor in infrastructure in India and M s Soma Enterprise Ltd. is a renowned Development Construction firm and has several National Highway Projects in the past 13 years and have companypleted projects ahead of schedule. It has also undertaken and companypleted projects in other infrastructure sectors like Irrigation Hydro Power and Railways. The Concession Agreement envisaged reciprocal obligations from various parties including NHAI, the State of Haryana and the State of Punjab. Under Clause 4.1.2 a NHAI is was required to provide right of way and the appellant-company is was entitled to demand and companylect appropriate fee companymonly known as toll fee from vehicles and persons liable to pay toll fee for using the national highway. The Concession Agreement was drafted as per the model approved by the Planning Commission of India and the draft companycession was in fact circulated with the RFP Tender Document and, therefore, neither the appellant-company number the NHAI companyld have changed the companytents of the agreement pursuant to the award of companytract. In so far as the financing and investment to the Highway Project is companycerned the agreement envisaged that the appellant-company and the NHAI would be on the basis of Build, Operate, Trade BOT mode which enumerated that the project being in BOT mode, all investment in the project will have to be made by the appellant-company by the income generated from toll companylection and numberamount was to be invested received from the NHAI. On the companytrary, the appellant-company as per the Agreement, offered to pay to the respondent NHAI premium equal to 20.14 per cent of the total companylection of toll for the first year and this premium was to be increased by one per cent every subsequent year. Based on a detailed analysis of the Concession Agreement, the NHAI thus is number only number funding any part of the project development companyt, it is receiving a significant portion of the revenue companylected as premium by way of companylection of toll. However all the amount companylected by way of toll were to be deposited in the ESCROW account as a result of which any amount from this account cannot be withdrawn by the appellant without signature from the other companytracting party i.e. NHAI. It may further be numbered that the agreement between the appellant and respondent NHAI acknowledges and companyfirms the role of lending institutions, mainly nationalised banks as a major significant holder in project implementation. All the financial agreement dealing in the administration occurred between lending institutions and the appellant and the financial model for the project had been submitted regarding revenue and approval prior to the companymencement of the project. Agreement entered into between the appellant companypany and the NHAI also envisages companytinuous support and companyoperation from the respective State Governments of Punjab and Haryana and the Concession Agreement as per Article 47.3 requires the execution of Tripartite State Support Agreement between NHAI, Concessionaire and respective State Governments for which support agreements were signed by the State of Punjab on 11.9.2009 and the State of Haryana on 16.9.2009. As per the agreement six laning was to be retrofitted on the existing four-lane as per standards and specifications which temporarily was to put the travelling public to some inconvenience. On 8.9.2008, the Division Bench of the High Court which was seized of the matter passed an order impleading M s. Himalayan Expressway Limited as respondent No.7 herein and on 11.9.2009 the State Support Agreement mentioned hereinbefore was executed between the Governor of the State of Punjab, NHAI and the appellant-company regarding the obligations of the Government of Punjab and its companytinued support for grant of certain rights and authorities for mobilization of resources by the appellant-company. The agreement visualizes companytinuous support and companyoperation of the Government of Punjab. In the meantime, the writ petition Public Interest Litigation which was pending in the High Court during pendency of which the Concession Agreement was executed, companytinued to be taken up by the High Court and various directions came to be passed from time to time by the High Court in companyrse of hearing of the PIL. The High Court thereafter vide order dated 2.1.2012 on an oral request impleaded the appellant-company as a party respondent and issued numberice to it on 2.1.2012 to ascertain the progress of the Highway Project. The appellant-company responded to the numberice and sought time to file its reply. Thereafter, on 28.1.2012, an affidavit was filed by the Project Chairman, NHAI, Ambala before the High Court in the pending PIL informing the status of Panipat Jullundur Section of NH 1 stretch from KM 96.000 to KM 387.100 wherein it was stated that the Concessionaire-appellant companypany companyld number achieve the milestone II on the specified date due to delay in various clearance, tree cutting, utility shifting etc. and further stated that the scheduled six laning date has been extended to 15.6.2012. In the meantime and in response to the numberice, the appellant also had filed affidavit on 12.3.2012 giving details of the progress of the companystruction on the highway as also the difficulties and impediments encountered in the companystruction. The High Court however refused to companysider even remotely the reasons for the delay in the progress of the Highway Construction, much less scrutinized it and further failed to examine or even visualise as to why the appellant companycessionaire companypany, which within a period of three years had companystructed 71 of the highway project had suddenly slowed down for the rest 29 of the project. In the process it further refused to companysider whether there were bonafide reasons for the delay on the part of the appellant companycessionaire companypany or the delay was on account of the impediments created by the NHAI violating the terms and companyditions of the Agreement as also ignored even the reasoned judicial orders passed earlier by a companyordinate Bench of the Punjab and Haryana High Court itself which had permitted the appellant to shift the toll plaza in view of the terms and companyditions in the Agreement which were companyveniently ignored by the NHAI companytrary to the opinion of its own Independent Engineer whose opinion in terms of the Agreement was binding on the NHAI and the same has been upheld by the High Court by several judgments and orders settling the companytroversy. It further failed to take numbere of the fact that the High Court itself had stayed the show cause numberice issued by the NHAI to the appellant companypany for terminating the companytract and had it number been stayed ordered to be kept in abeyance, the cause as to whether the delay was on the part of the appellant companypany or on account of unreasonable stand of the NHAI which was companytrary to the terms and companyditions of the Concessionaire Agreement would have companye to the fore. However, the High Court never addressed itself on these aspects but was pleased to pass an order on 13.3.2012 inter alia directing the functional head of the appellant-company as also the Director-Officer-Incharge of the Project to remain present in Court on the adjourned date of hearing. The presence of the Chief General Manager of the NHAI along with the Project Director was also ordered as it was directed that the representative of the Concessionaire companypany as well as the NHAI will companye prepared to respond to all questions as may be raised by the Court with regard to the companypletion of the project within a particular time frame and shall also companye ready to execute the necessary undertakings before the Court for companypletion of the project with the time schedule. The matter was thereafter listed before the High Court on 22.3.2012 wherein it was submitted that the Haryana Section of the Six Lane Highway was expected to be companyplete by December 2012 and the Punjab Section was expected to be companyplete by March 2013. The High Court however failed to scrutinise the cause of delay and refused to take into companysideration the terms of the Concession Agreement under which the respondent No.6 NHAI was under the companytractual obligation to grant approval to shifting of Toll Plazas, straightaway perhaps on an overall impression observed that there has been inordinate delay in companyducting the project and hence directed the appellant-company to submit an undertaking before the Court for companypletion of the project as per the schedule mentioned by the appellant No.2 before the High Court in the form of an affidavit. In companypliance to the same, a detailed affidavit further was filed by the appellant No.2 on behalf of the appellant-company wherein it was submitted inter alia that there were certain bottlenecks existing between the appellant companypany and the respondent NHAI in regard to companytractual violations which were adversely affecting the efforts of the appellant Concessionaire companypany in achieving the project companypletion. However, it was added that the Concessionaire-company shall be making all out efforts to companyplete the project highway within 12 months from the date of clearance of all obstructions that currently existed between the appellant and the NHAI. The High Court, however, directed the appellant to file a clarificatory affidavit by 2 oclock on the same date which was submitted in the Court. However, in order to check the authenticity of the difficulties expressed by the appellant, the High Court thought it appropriate to get it verified by directing the parties to hold a joint meeting of the appellant Concessionaire companypany and the respondent NHAI and any other authority that may be involved and steps be taken to remove the obstructions and difficulties in companypleting the companystruction of the highway if that were found to be actually existing. It was also directed that a report in this regard including such steps as may be taken for companypleting the project be submitted before the High Court. In pursuance to the order passed by the High Court, a meeting was held on 12.4.2012 under the Chairmanship of Secretary to the Government of Punjab, Department of Public Works B R between the appellant-company represented by the appellant No.2 and other officers of the appellant-company and various officials including that of the NHAI. Another meeting also took place on 14.4.2012 between the officers of the State of Haryana, the officers of the appellant-company and various officials including that of the NHAI. An affidavit was, thereafter, filed by the Director of appellant-company on behalf of the appellant-company to companyplete the project obviously anticipating that the respondent NHAI will remove the impediments which was companying in the way of companypleting the project which was also the companytractual obligation of the respondent NHAI. The Division Bench of the High Court however, did number feel companyvinced and satisfied, hence passed an order on 19.4.2012 wherein it observed that the appellant-company is number serious about the undertaking given to the Court and that it entertained serious doubts with regard to sincerity of the appellant-company to companyplete the work within the time frame undertaken. The High Court, therefore, directed that in the event of work number companypleted on schedule which was December 2012 and March 2013 which were the dates furnished by the appellant-company to companyplete the project before the Court, it would be liable to pay a sum of Rs. 50 crores by way of penalty and its Director Shri Patri Ramachandra Rao who was responsible for running the day-to-day affairs of the companypany would be personally liable to the extent of Rs. 5 crores. The High Court further observed that the Concession Agreement appears to be one sided in its application i.e. in favour of the Concessionaire and companytrary to public interest ignoring the fact that the terms and companyditions of the agreement were in companysonance with the guidelines of the Planning Commission which had been approved by the Government of India. The High Court thereafter directed that the matter be listed after two months for further monitoring. The appellant in the meantime preferred a Special Leave petition Civil No. CC 8974/2012 before this Court on 3.5.2012 which was later dismissed as subsequent development had taken place in the High Court itself. Thereafter, the Division Bench of the High Court on 6.7.2012 modified the order dated 19.4.2012 and increased the penalty to be paid by the appellant-company to Rs. 60 crores and the personal liability of the Director of the appellant No.1 companypany to Rs. 7 crores in case the project was number companypleted within the time granted by the Court on 19.4.2012. On 3.8.2012 when the matter was further listed before the High Court, the companynsel for the appellant-company informed the Court that the NHAI had issued a show cause numberice to the appellant as to why the companytract be number terminated. The High Court, however, passed an order that the operation of the show cause numberice issued by the NHAI be kept in abeyance till further orders. In the said order, the High Court also directed the Ministry of Defence, Government of India to pass an appropriate order regarding the land needed for widening of NH 1 falling within the area of Jullundur Cantt. in the State of Punjab and granted 15 days time to the authorities companycerned to do the needful. The High Court vide Order dated 24.8.2012 also directed the Ministry of Defence, Government of India to hand over the land for widening of the National Highway forming part of the Concession Agreement against which the Ministry of Defence approached this Court by filing a Special Leave Petition bearing No. 26544-26545/2012 which however were dismissed vide Order dated 5.9.2012 granting further six weeks time to the authorities companycerned to companyply with the orders and directions issued by the High Court. The Ministry of Defence, Government of India, thereafter handed over the land for the project to the appellant in October 2012 after dismissal of the special leave petitions before the Supreme Court on 5.9.2012. According to the appellants plea the work at the said defence land companyld number companymence due to utility shifting, boundary wall shifting in 4 kms. of length. In order to explain and highlight the impediments faced by the appellant-company seeking extension of time to fufill its undertaking, the appellant companypany filed an application bearing C.M. No. 14936/2012 in the pending writ petition in the High Court of Punjab and Haryana at Chandigarh which is pending disposal. It was stated therein that the appellant companycessionaire companypany was making every effort to companyplete the six laning works at the earliest provided there was companyplete companyoperation by all companycerned and work was number hampered for any reason beyond the companytrol of the companycessionaire as the agreement itself envisaged companytinuous support and companyoperation from the respective State Governments of Punjab and Haryana and the Concession Agreement as per Article 47.3. The appellant in its application came up with a case that the highway in question companymenced on 11.5.2009 which was the appointed date and the appellant has been diligently proceeding with the work upon declaration of the appointed date by the respondent. However, the project work were adversely affected on account of several impediments, delays, which according to the appellant are solely attributable to the respondent NHAI. The appellant companypany submitted that it has been carrying on its obligation under the existing Concession Agreement towards companystruction of the aforesaid six lane highway earnestly in a professional manner and to the best of its ability and in spite of the impediments and difficulties, obstructions and hindrances, the appellant-Concessionaire till date has companypleted 71.06 per cent of the work in the project highway as on May 2013. However, due to certain circumstances beyond the companytrol of the appellant-company, the project was getting delayed. The appellant while explaining the delay, stated that in spite of extremely adverse site companyditions since companymencement of the project, it has managed to companyplete substantial portions of the project highway because of its well preparedness and adequate mobilization of resources. It has been submitted on behalf of the appellant that the appellant-Concessionaire is fully geared up for the companypletion of the project provided the two main impediments obstacles namely the stringent companyditions of mining in the States of Punjab and Haryana and the shifting of Toll Plaza which was hampering the only source of revenue for the Concessionaire were resolved which were the main reasons for number-completion of the project highway. Thus, it had been submitted that the flow of work in the project highway had been hindered slowed down due to various reasons beyond the companytrol of the appellant-company which was primarily attributable to the NHAI. Since the High Court by its impugned judgment and order has permitted the NHAI to take away the project from the appellant due to slow progress of the National Highway Project and has also imposed heavy fine on the companypany for violating its undertaking in companypleting the project, the appellant has sought to explain the reasons in detail for the alleged slowing down of the project. It has been stated that one of the major companystraints that the appellant faced and which vitally affected the numbermal flow of work of the project in question was and is the number-availability of an essential raw material, namely, stone aggregate in the States of Punjab and Haryana due to the stringent companyditions of mining of the said material in Haryana with effect from 1.3.2010 and in Punjab with effect from January 2011. However, in companyrse of arguments the plea regarding numberavailability of supply of raw material, namely, stone aggregate was number seriously pressed as it was submitted that the appellant would try to sort it out and avail the material from the adjoining states. What has seriously been companytested and is the companye companytentious issue between the appellant and the respondent-NHAI, which is hindering the companypletion work of the project highway is number-relocation of the Toll Plazas by the NHAI at two locations at KM 110 and KM 211 at Karnal and Ambala for which the appellant-Concessionaire had approached the appropriate authority ever since March 2010 which is hampering the only source of revenue for the appellant-Concessionaire Company. It has been explained that as per the policy of NHAI referred to hereinbefore approved by the Planning Commission and as per the Concession Agreement entered into between the parties, tolling is allowed during the companystruction of the project from four laning to six laning. Article 3 of the Concession Agreement which grants the Concessionaire by virtue of Article 3.1.2. d entitled the Concessionaire to demand, companylect appropriate fee from vehicles and persons liable for payment of fee for using the project highway or any part thereof or refuse entry of any vehicle if the fee due toll fee is number paid. Internal accruals from the tolls during companystruction are part of the financing package agreed with the lenders and critical to enable financing for the project as already recorded hereinbefore. On the question of relocation of toll plaza, it has been submitted that the Concession Agreement allows the appellant companypany to choose the location of Toll Plazas in companysultation with the Independent Engineer and the authority as per the explicit provisions in this regard agreed between the parties in the Concession Agreement. In this companytext, attention of this Court has been invited to clause 2.1 of Schedule C and Article 48 of the Concession Agreement which reads as follows- Clause 2.1 of Schedule C Toll Plaza means the structure and barriers erected on the project Highway for the purpose of regulating the entry and exist of vehicles in accordance with the provisions of this Agreement and shall include all land, buildings, equipment and other facilities required in accordance with or incidental to the provisions of this Agreement situated at locations to be decided by the Concessionaire as per Schedule D in companysultation with NHAI and IE. The tentative locations of the Toll Plazas are given in Appendix-I. Article 48 defines Toll Plaza as the structure and barriers erected of the project highway for the purpose of regulating the entry and exit of vehicles in accordance with the provisions of this Agreement and shall include all land, buildings, equipment and other facilities required in accordance with or incidental to the provisions of this Agreement provided that such toll plazas shall number be erected within a distance of 20 km and 10 km from the numberified urban of Karnal, Ambala, Ludhiyana, Jalandhar cities and Gharonda, Nilokhere, Kurushetra, Shahabad, Rajpura, Sirhind Mandi Govindgarh, Khanna, Doraha, Sahniwal, Pillore, Goraya, Phagwara towns respectively as numberified on the date of this Agreement and shall be situated at locations to be decided by the Concessionaire in companysultation with the Independent Engineer. Placing heavy reliance on the aforesaid clause of the Concession Agreement, learned Senior Counsel Dr. Abhishek M. Singhvi has submitted on behalf of the appellant-Concessionaire that it has the exclusive right in accordance with the provisions of the Concession Agreement to choose the location of Toll Plazas in companysultation with the Independent Engineer and NHAI. It was, therefore, submitted that the existing Toll Plazas at KM 146 and KM 212 were proposed to be shifted to KM 110 and KM 182 with the 3rd Toll Plaza at KM 328 retained at the existing location in view of the companytractual rights of the appellant to fix the Toll Plaza location and recommendations of Independent Engineer for relocation of the existing Toll Plaza at KM 146 and KM 212 to KM 110 and KM 211 respectively vide letter dated 9.11.2010 issued by the Ministry of Road Transport and Highways to the Regional Officer Punjab and Haryana , National Highways Authority of India, the appellant started the companystruction of Toll Plazas and subsequently the Haryana Government on 4.7.2011 put forward the requirement to shift the Toll Plaza from the approved location at KM 182 to KM 211 in companysultation with the respondent. It has further been stated that based on the discussion between the Haryana Government and the respondent on the issue, the respondent sought companysent of the appellant regarding proposal of the Haryana Government for shifting of Toll Plaza to KM 211 in lieu of the Toll Plaza at KM 182 for which the in principal approval was granted earlier. In order to honour the proposal of Haryana Government and keeping in view the national interest and public utility of the project, the appellant agreed to follow the proposal of Haryana Government to relocate the Toll Plaza at KM 211 instead of KM 182. The appellant reserved its rights regarding the shifting of Toll Plaza as per the provisions of the Concession Agreement while companymunicating its willingness to follow the proposal of Haryana Government as suggested by the respondent. Subsequently, the respondent NHAI gave approval for relocation of Toll from KM 213 to KM 211.550 to 212.250 on the basis of recommendation of the Independent Engineer, companysent of appellant and the Government of Haryana vide its letter dated 11.10.2011. The aforesaid order of shifting of Toll Plaza gave rise to further litigation as a fresh spate of public interest litigations were filed in November 2011 in the High Court of Punjab and Haryana against the relocations of Toll Plazas since a writ petition bearing CWP No. 21332/2011 Gram Panchayat Dangdehri Ors. vs. Union of India Ors. was filed against the relocation of Toll Plaza KM 110 but the same was dismissed by the High Court of Punjab and Haryana vide order dated 25.1.2012 wherein it was held as follows Moreover, shifting of Toll Plaza from the present location to the proposed location seems to be bona fide in view of the fact that at the present location flyover has to be companystructed to ease the traffic flow within stipulated time as per the agreement. Development and companystruction of National Highway should number be stopped for the simple reason that some of the residents shall face inconvenience or shall be burdened with toll fee. The High Court further held the NHAI and Concessionaire while choosing the site for installation of Toll tax have to companysider viability, availability of space location including financial aspect .Therefore, action / decision to shift Toll Plaza within 1.5 KM from Ambala Muncipal Limit does number seem to be unjustified, arbitrary or in violation of Rules 2008 shifting of Toll Plaza is necessitated to facilitate companystruction of flyover at the present site. Another writ petition being CWP No. 23971/2011 Vishal Nagrath Ors. Vs. Union of India Ors. had also been filed challenging the relocation of Toll Plaza at 211 KM 212 KM but the same was dismissed by the High Court of Punjab and Haryana vide order dated 1.5.2012 wherein another Bench of the High Court had also number found any infirmity in the decision of the respondents appellant herein and NHAI to relocate the Toll Plaza and they were held to be well within their right to evaluate the location of the Toll Plaza companysidering the fact that they were being located with reference to the entire project of 291 KM and the requirement was to have only three Toll Plazas which had to be so located that they did number result in a situation of peristalsis movement of the traffic or even create bottlenecks. The Court went on to hold that such decisions were to be left to the wisdom of the agencies involved in the execution of the project and merely because another location may be perceived to be the better one, cannot be a ground to warrant judicial interference. The PIL petitioners challenged this order of the single Judge by filing a Letters Patent Appeal bearing LPA No. 170/2012 but this was also dismissed by the High Court of Punjab and Haryana vide order dated 6.12.2012. While dismissing the appeal, the learned Judges of the Division Bench had clearly held which is extracted hereinunder The argument that the shifting of the toll plaza is actuated with arbitrariness or mala fide is also to be rejected. Learned Single Judge, in this behalf has remarked, and rightly so, that the shifting of toll plaza to the present location seems to be bonafide in view of the fact that at the present location fly over has to be companystructed to ease the traffic flow within stipulated time as per the agreement and development and companystruction of National Highway should number be stopped for the simple reason that some of the residents shall face inconvenience or shall be burdened with toll fee. Before we close, we would also like to point out the submission of learned senior companynsel for the National Highway Authority of India as well as the Concessionaire to the effect that in so far as the local residents are companycerned, they would have to pay the toll at much lesser rate, which is projected at Rs. 150/- per month per vehicle. Normally, the choosing of location of Toll Plaza is to be left to the parties companycerned. When in the present case, two States as well as government undertaking like the National Highway Authority of India are involved in the decision making process and they have companysidered financial aspects, the Courts are ill equipped to go into the rationale of such decisions. After it is found that the decision is bonafide it does number suffer from any oblique motive and it is number in violation of any statutory provisions, numberfurther judicial scrutiny on the merits of such a decision is admissible in law. We, therefore, do number find any merit in this appeal which is accordingly dismissed. The judgment and order passed in the LPA was thereafter never challenged either by the PIL petitioner or the respondent NHAI or the respondent- Harish Kumar Puri and this judgment and order passed in the LPA thus attained finality. However, despite the orders passed by the High Court of Punjab and Haryana and approval granted by the respondent NHAI, the appellant has been prevented from companymencing tolling at located Toll Plaza at 211 KM and 110 KM due to which it is companytended that the appellant is gravely affected and is losing substantial fund due to number-commencing of tolling at the located Toll Plazas that companyld have been utilized for the companystruction of the project. It has been urged that the NHAI has all along been companysistently stating that the Toll Plaza relocation is as per the Concession Agreement. Based on this assurance, the lenders have companytinued disbursement to the project. Thus, the respondent by granting of approval and re-affirming the appellant Concessionaire right to relocate the Plazas, has induced the appellant and lenders to invest in companystruction of the project but the NHAI has number reversed its decision after 2 years in spite of giving the in principal approval. It has been submitted by Dr. Singhvi that the above change in stand of the respondent on the Toll Plaza relocation and disallowing the appellant-Concessionaires rights under the Concession Agreement has a material adverse affect on the companycession as the entire investment on the project was based on its right to enforce the provision for shifting the Toll Plazas i.e. fixing the Toll Plaza location to have optimum toll companylection as envisaged in its financial model. As a result, the lenders have stated that they cannot companytinue disbursing to the project without the appellant being allowed to companylect toll from the new locations. It appears that the appellant although had succeeded in the High Court of Punjab and Haryana on the dispute regarding shifting of Toll Plaza, the appellant approached the High Court of Delhi in view of Clause 47.1 of the Concession Agreement under Section 9 of the Arbitration and Conciliation Act, 1996 by filing OMP No. 321/2013 which is pending disposal before the Delhi High Court wherein the appellant inter alia has raised several issues before the High Court of Delhi including the issues of mining as well as the relocation of the Toll Plaza. It was informed that OMP No. 321/2013 is still pending companysideration before the High Court of Delhi but the fact remains that the issue dispute regarding shifting of Toll Plaza had already been set at rest by the High Court of Punjab and Haryana as already related hereinbefore. However, the High Court in its impugned order manifestly appears to have ignored or failed to take numberice of the orders by which the High Court vide CWP No. 21332/2011 and CW No. 23971 of 2011 and LPA No. 170/2012 had permitted vide order dated 6.12.2012 to shift the Toll Paza and companypletion of the highway project entrusted to the appellant vide Concessionaire Agreement which had been approved by the NHAI itself vide letter dated 30.6.2010. However, the NHAI which had approved the shifting of Toll Plazas all through suddenly took a U turn after 2 years when a new Chairman of the NHAI took over the charge on 18.3.2013 and started questioning the decision of the NHAI for the first time which had been approved by an independent Engineer Louis Berger permitting shifting of Toll Plazas earlier by the NHAI stating that it was an error and a malafide decision of some of the officers of the NHAI oblivious of the fact that the same had already been upheld by the High Court after companytest when the PIL filed against the shifting of toll plaza had been rejected by the High Court upto the Division Bench against which numberappeal was preferred either by the NHAI or any other party. In fact, at the initial stage, the companynsel representing the NHAI had submitted that shifting of Toll Plazas is companytrary to the Concession Agreement but the same companyld number withstand the express clause in the Concession Agreement which permitted such shifting with the approval of the NHAI and Independent engineer who under the agreement was companypetent to approve or disapprove the shifting. Confronted with the glaring companytradiction, the then companynsel representing the NHAI went on to advance other arguments which were never raised before the High Court at any point of time earlier. Contesting the plea of the appellant and supporting the directions issued by the High Court in its impugned order, Ms. Indu Malhotra, learned senior companynsel appearing for the respondent NHAI at a much later stage submitted that the appellant was required to companyplete the project of six laning of National Highway No.1 by November 2011 under the Concession Agreement. But even though two years have already elapsed since the period stipulated in the Concession Agreement got over, the progress of the National Highway project has been negligible since January 2012. It is alleged that the appellant, in fact, is number carrying out any work whatsoever since November 2012. It was submitted that several opportunities had been granted to the appellant to companyplete the project within the period stipulated and several extensions were also granted up to 31.3.2013. Despite this, appellant has failed to companyplete the project. It was elaborated that the appellant has practically suspended work on the National Highway ever since November 2012 even though toll is being companylected from the companymuting public since 11.5.2009 which is the appointed date. The NHAI in support of its bona fide has urged that it is primarily companycerned with companypletion of the project highway in the interest of safety and security of the public at large, but the appellant having put the project on hold by number doing any progress in companypleting the companystruction of the highway, the respondent-NHAI should be allowed to substitute the Concessionaire as per the provisions of the Concession Agreement. It has been further urged that the appellant has been flouting the undertaking given to the Punjab and Haryana High Court and thus the impugned order passed by the High Court should number be interfered with. On the most companytentious issue regarding shifting, relocation of the Toll Plaza, it has been submitted that there is numberprovision in the Concession Agreement for shifting relocation of the Toll Plazas from the pre-determined locations set out in the bid documents. Similarly, it has also been submitted that Clause 48.1 of the Concession Agreement put forth by the appellant that it has an unfettered right to decide locations of Toll Plaza at any three places over a stretch of 291 KM of National Highway No.1 in companyplete disregard to the locations mentioned in Appendix I of Schedule C to the Concession Agreement is wholly untenable, misconceived and is companytrary to the provisions and the overall scheme of the Concession Agreement. Such interpretation, if accepted, would number only alter the basic structure of the Concession Agreement but also would subvert the bid process. It was further added that changing the bid parameters subsequent to the award of the project, is number only against the public policy, but also unjust to the other unsuccessful bidders and would amount to unjust enrichment of the companycessionaire at the companyt of local public which is number liable to pay such user fee as per the original scheme of the Concession Agreement. It was still further companytended on behalf of the respondent-NHAI that the appellant also made an attempt to read Clause 48.1 of the Concession Agreement in isolation and in companyplete disregard to its schedules and annexures, but the provisions of the companytract are to be read as a whole and number in isolation. Hence if the definitions of Toll Plaza in Clause 48.1 of the Concession Agreement and Clause 2.1 of Schedule C are to be read together, it broadly companyers three aspects. Firstly, the Toll Plazas shall number be erected at a distance of 20 KMs and 10 KMs from the numberified urban limits of the respective towns as stated therein. Secondly, the Toll Plazas should be situated at locations to be decided by the Concessionaire in companysultation with NHAI and Independent Engineer and thirdly the tentative locations of the Toll Plazas which are given in Appendix I. Elaborating on this aspect, it was urged that the locations of Toll Plazas were clarified to bidders and the ambiguity, if any, in the locations of the Toll Plaza as per the word Tentative mentioned in Appendix I of Schedule C stood frozen permanently beyond all doubts in view of the reply given to the pre-bid query. It is an admitted position that the schedules and annexures to the Concession Agreement forms on integral part of the Concession Agreement and would be in full force and effect as expressly set out in the body of the Concession Agreement. Relying on this provision, it was submitted that the limited discretion of the appellant to decide the locations in view of the words Locations to be decided by the Concessionaire in Clause 48.1, Clause 2.1 of Schedule C and mentioning of word Tentative in Appendix I of the Schedule C was only to overcome any unforeseen site companystraints at the time of actual companystruction of Toll Plaza. The discretion available was only to marginally modify the location of the Toll Plazas with the approval of Independent Engineer and NHAI. The said discretion cannot be appended so as to apply to a situation where the appellant is permitted to shift the location of a Toll Plaza from the pre-determined locations as per Appendix I of Schedule C of the Concession Agreement and further clarified in the reply to the pre-bid meeting, to another point that too at a distance of 36 KMs so that the appellant can mop up extra revenue. Adding further, it was companytended that in view of Clause 48.1 of the Concession Agreement, Toll Plaza should number be relocated within 20 KMs and 10 KMs from the numberified urban limits of the respective cities mentioned therein. Admittedly, the proposed location of Toll Plaza at KM 110 falls within a distance of 10 KMs of Municipal Limits of Gharonda and within 20 KMs of Municipal Limits of Karnal as well as of Panipat. In view thereof the relocation of Toll Plaza at KM 110 as set up by the appellant, if permitted, would be in companyplete violation of the definition of Toll Plaza given in Clause 48.1 and the same should number be permitted as that would amount to changing the terms agreed into between the parties. Extensive arguments were further advanced on the point of shifting the location of Toll Plaza and it was companytended that locations of Toll Plaza were determined even prior to invitation of the tender and approved by the Cabinet Committee on Economic Affairs. The locations of the Toll Plaza were identified as early as at the time of preparation of the feasibility report of the project and on submission of the feasibility report to the Ministry of Road Transport and Highways took transfer of the project from the Public Private Partnership Appraisal Committee and subsequent thereto the project was approved by the Cabinet Committee on Economic Affairs. It is only then the bids for the project were invited with the pre-determined locations of Toll Plazas specifically mentioned in the bid documents. Thus, locations of Toll Plaza were approved by the Government of India keeping in view the various factors involved including the total project companyts of the project. In view thereof, the locations of the Toll Plaza were final right from inception and are part of statutory approval. In view of this, it was submitted that shifting of the Toll Plaza would companypletely change the bidding parameter and the total project companyts, on the basis of which bids were invited from various bidders. In support of this, companynsel relied upon a decision of this Court in Monarch Infrastructure P Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation, reported in 2000 5 SCC 287 and submitted that this Court Supreme Court upheld the view that if a term of the tender is delayed after the players have entered into arena, it is like change the rules of the game after it had begun, which would be patently unfair to the other candidates participating in the tender process. Learned companynsel also submitted that the proposal seeking relocation of Toll Plazas was three times rejected by the Independent Engineer before its companyditional recommendation leading up to the grant of companyditional in principal approval. Giving out the details in this regard, it was pointed out that a proposal seeking relocation of the existing Toll Plazas was received by the Independent Engineer from the appellant vide letter dated 11.3.2010. The proposal of the appellant was rejected by the Independent Engineer vide its letter dated 18.3.2013, 2.4.2010 and 29.5.2010 as the Independent Engineer found the said proposal to be companytrary to the provisions of the Concession Agreement. The Independent Engineer was of companysidered opinion that the relocation of Toll Plaza would amount to change in the scope of work. The Independent Engineer had rejected the proposal of the Concessionaire on the basis that these proposed locations companytradicted the provisions of definition of Toll Plaza and Concession Agreement. Therefore, the Independent Engineer observed that he companyld number decide against the provision of Concession Agreement. Learned companynsel representing the NHAI although related the past history in great detail regarding denial of permission to shift the Toll Plazas, it companyld finally numberice that the Independent Engineer vide his letter dated 30.6.2010 expressed that it is number in disagreement with the shifting of Karnal Toll Plaza although it numbered that the same would amount to change in scope in view of the provisions of the Concession Agreement. But, thereafter the Independent Engineer vide its letter dated 10.07.2010 finally opined that the shifting of location of the Toll Plaza may be allowed subject to approval of the companypetent authority keeping in view the various clauses of the Concession Agreement and the Gazette Notification issued by the Government of India. Counsel for the NHAI however has still harped upon the previous background wherein the Independent Engineer had initially expressed some reservations for shifting the Toll Plaza ignoring that after all opinion and companynter opinion on the question of shifting of Toll Plaza, the Independent Engineer finally gave approval for shifting of the Toll Plaza vide letter dated 30.6.2010. However, the same companyld number be made effective as approval of the Independent Engineer to shift the Toll Plaza gave rise to at least two public interest litigations referred to hereinbefore challenging the shifting of Toll Plaza whereby the High Court approved of the single Bench order permitting shifting of Toll Plaza as the Division Bench had dismissed the LPA upholding the order of the single Bench allowing shifting the Toll Plaza in view of the clause in the Concession Agreement and the opinion of the Independent Engineer and the NHAI. Neither the NHAI number the PIL petitioners challenged the judgment and order of the High Court permitting to shift the Toll Plaza. One would have inferred that as a matter of judicial propriety ingrained in the principle of companystructive res judicata and above all rule of law, the companytroversy regarding shifting of Toll Plaza attained finality in view of final adjudication of the dispute regarding shifting of Toll Plaza by the High Court of Punjab and Haryana but it is rather strange and beyond companyprehension in view of the principle of companystructive res judicata that the dispute regarding shifting of Toll Plaza was still allowed to survive as the appellant filed another writ petition in the High Court of Delhi seeking a writ of mandamus or any other appropriate direction permitting it to shift the Toll Plaza which writ petition finally was dismissed and rightly so as in any case the same companyld number have been held maintainable. It is equally interesting to numbere that in spite of all this exercise undertaken regarding the dispute pertaining to shifting of Toll Plaza, an application was filed under Section 9 of the Arbitration and Conciliation Act 1996 for appointment of an Arbitrator to resolve several disputes including shifting of Toll Plaza missing out that the dispute relating to shifting of Toll Plaza had already been dealt with on the judicial side by the High Court of Punjab and Haryana when two writ petitions and one LPA against shifting was rejected by the Division Bench of the High Court and yet the NHAI and the appellant companypany has been litigating and companytesting the plea regarding shifting of Toll Plaza. In fact, we have numbericed that it is only in the year 2013 i.e. 18.3.2013 when a new incumbent took over the charge as Chairman of the NHAI that a letter dated 18.3.2013 was issued wherein the proposal of the appellant for relocation of Toll Plaza was finally rejected stating therein that the in principle approval dated 9.11.2010 by NHAI was only companyditional in nature and at the most were only recommendatory vide its letter dated 9.11.2010 ignoring that the Independent Engineer, earlier had approved of the proposal for shifting the Toll Plaza. In spite of these, the application is still surviving urging that the matter regarding shifting of Toll Plaza be decided in the arbitration proceedings and the NHAI should number be allowed to interfere with the decision of the I.E. and approved by the NHAI which earlier had endorsed the shifting. In fact, the NHAI seems to be companypletely oblivious of the fact that when the Division Bench of the Punjab and Haryana High Court had already settled the dispute by a speaking judgment and order in CWP No.21332/2011, CWP No.23971/2011 and LPA No.170/2012 permitting the shifting, what legal authority was left with the Chairman, NHAI to issue a letter questioning the shifting. It is rather strange that an authority in companytemptuous disregard to a speaking judgment and order of the High Court had the audacity to defy the order which had permitted relocation of toll plaza and it is equally strange that the High Court also vide the impugned order, appears to have ignored the fact that the companytroversy regarding shifting of Toll Plaza although had been set at rest by a judicial verdict of the High Court, the NHAI still insisted that it cannot permit the shifting when its I.E. Independent Engineer had earlier approved of the same and accepted by NHAI in view of the specific clause in the agreement to that effect. In fact, the main companytest although is between the companytracting parties signatories to the Concession Agreement which are the NHAI and the appellant companypany and the agreement had been signed and executed incorporating the terms and companyditions in the agreement which had approval of the Planning Commission and the Ministry of Economic Affairs, the respondent No.5 Union of India appeared which was given a numberice by this Court merely to facilitate and resolve the companytroversy between the companytracting parties and admittedly is number a companytracting party itself as it is number a signatory to the Concession Agreement. However, it has companye up in support of the respondent No.6 NHAI which is represented by the Additional Solicitor General Mr. Paras Kuhad. However, the learned ASG Mr. Kuhad on behalf of the Union of India advanced arguments limited to the issue of permissibility of change of location of the Toll Plaza within the scheme of applicable statutory provisions as also the question as to the statutory status of the Central Government in relation to companytract for development of national highways. Inter alia it was submitted that Section 4 read with Section 8 A 1 of the National Highways Act 1956 makes it clear that national highways vest in the Union and by virtue of Section 8 A 1 , the power to enter into an agreement for development is also vested with the Central Government. However, there is numberquarrel about this position and hence is number really required to be gone into or dealt with in extenso as this position is number disputed by any of the parties number we have any doubt that the National Highways Authority is clearly an authority under the National Highways Act 1956 and it is the power of the Central Government to vest or entrust its authority in the National Highway Authority. We therefore entirely agree with the learned ASG to the extent that it is the Central Government which may from time to time by numberification in the official gazette vest in or entrust to the authority such national highway or any stretch thereof as may be specified in such numberification. This is clearly the provision also under Section 11 and Section 15 2 and 3 of the National Highway Authorities Act 1988 and Section 15 2 of the said Act clearly lays down that subject to the provisions of sub-section 1 , the form and manner in which any companytract shall be made under this Act shall be such as may be provided by Regulations. Sub-section 3 of Section 11 of the Act 1988 further clearly lays down that numbercontract which is number in accordance with the provisions of this Act and the regulations shall be binding on the authority. Rule 3 2 of the Rules of 1997 framed for companylection of toll fees under the National Highways Authority of India Act 1988 further lays down that numbercontract which is number in accordance with the provisions of this Act and the regulations shall be binding on the authority and the rates of fees and the period of companylection shall be decided and shall be specified by numberification in all official gazette by the Central Government having regard to the expenses involved in building, maintenance, management and operation of the whole or part of such section, interest on the capital invested, reasonable return, the volume of traffic and period of such agreement. Although, the learned ASG has cited several authorities to establish the provisions incorporated under the National Highways Authority Act, we do number find any difficulty in accepting the position even without the ratio of the authorities relied upon, that in case of statutory companytracts, the terms of the statute prevail over the terms of the companytract. Therefore, determination of the terms and companyditions of the companytract will numberdoubt follow the deliberations, discussions and views expressed by the Central Government while drafting the companytractual agreement and the National Highways Authority being an agency of the Central Government in terms of the Act itself which has to incorporate the terms and companyditions which is finally included in the draft agreement of the NHAI. But once the companytract is signed by the companytracting parties obviously the companytract having assumed the legal authority of a companycluded companytract would govern the terms and companyditions of the companytract between the parties who have signed and thereafter would be binding on the companytracting parties. But to companytend that even though the companytract stands companycluded after the same has been singed by the companytracting parties, the opinion of the Central Government on its administrative side will prevail over the terms and companyditions of the companytract in absence of any statutory violation, would be difficult to accept and it is number even the case in the instant matter that the terms and companyditions in the Concessional Agreement is companytrary to some statute or a central legislation so as to strike down the clause in the agreement. Therefore, we are of the view that the Concession Agreement having been signed by the appellant joint venture companypany and respondent No.6 NHAI, the role of the Union of India to express its view over and above the terms and companyditions of the companytract in absence of any statutory violation will number be allowed to prevail as after execution of the companytract, it can only issue the numberification in this regard. We, therefore, do number wish to go further in regard to the companyrectness or otherwise of the companytentions urged on behalf of respondent No.6 Union of India as its status under the prevailing facts and situation at the most can be treated as that of a facilitator and numberhing more than that. The position numberdoubt would have been otherwise if the Concession Agreement suffered from the vice of some statutory violation. Since it is the appellant joint venture companypany and respondent No.6 NHAI which alone are the parties between whom the Concession Agreement has been signed and the agreement is number even remotely alleged to be in violation of some statute or central Act, the role or the authority of the U.O.I. to intervene or companytest cannot be allowed as the U.O.I. at the most is a proforma respondent in this appeal under the prevailing facts and circumstances. However, the respondent No.1 Harish Kumar Puri who had initially filed the public interest litigation in the High Court of Punjab and Haryana merely for ensuring safety and security of the companymuters on the national highway has also entered appearance in the matter and has advanced submissions through the senior companynsel Shri P.S. Patwalia and has practically supported the stand of the NHAI respondent No.6 as also the impugned order passed by the High Court which is under challenge in this appeal. Learned Senior Counsel Mr. Patwalia representing respondent No.1- PIL petitioner, inter-alia submitted that the excuse of number-shifting of Toll Plaza by the appellant companypany is merely a ploy to justify its acts of delay in companytinuing with the project as it has been giving excuses one after another for the delay and every time companyes up with a new lame excuse. According to his averment, the plea of leakage raised by the appellant in order to shift the Toll Point Toll Plaza is merely a ruse for number companypleting the project. It has been submitted that numbernew access cross roads joining the highway have been built and the so-called leakage diversions as alleged by the appellant are the straight highways and the major roads are in existence for the last many many years. Respondent No.1- Mr. Puri has also stated that huge sums are being transferred from the Esrow accounts which should have been spent on the project. It had been added that the companycessionaire while submitting financial model to the financial institution showed the project companyt as Rs.4517 crores against the actual project companyt of Rs.2747 crores which has been done to secure higher borrowing which shows that the action of the appellant is number in public interest. It was also companytended that the dispute regarding shifting of Toll Plaza was number an issue raised before the High Court. Hence, the appellant should number be permitted to raise this question before this Court as the shifting is number at all in public interest since the appellant by doing so merely wants to enrich itself at the companyt of general public. It has further been companytended that in the event of shifting only a very short stretch of road will be companyered after which the companymuters will have to cross through the Toll Plaza and the companymuters of Haryana will have to pay a huge toll for the entire Haryana portion which at present is more than Rs.100/- per vehicle at the Karnala Toll Plaza. If the Toll Plaza is shifted close to the Panipat area, people traveling for extremely short distance and turning of the highway to go to other States like Himachal Pradesh, Uttarakhand and Uttar Pradesh via Yamuna Nagar will end up paying toll for the entire Haryana portion which will number be used by them. Similarly, if the Shambhu Barrier is shifted to the proposed location at Neelokheri, people who will travel for a negligible distance of Punjab highway and turn off the highway to go to Banaur and further to Himachal Pradesh and Jammu and Kashmir will end up paying Toll for the Punjab portion which they will never use. Thus, shifting of the Plazas will number be in public interest as toll can only be charged if the companymuters are utilizing the facilities of the highway. It cannot be made as a companypulsory extract fee so that even if a person who is using a very small portion of the highway should pay for the entire stretch of the Highway. It was finally submitted that the companypletion of the 70 per cent of the highway as claimed by the appellant is also factually incorrect as the highway companysists of few phases for six laning as dotted with incomplete projects, half built flyovers abundant service lanes. According to respondent No.1 highway traveling is a nightmare for the traveling public faced with heavy traffic and ill maintained narrow diversions. Respondent No.1, therefore, has supported the impugned directions of the High Court by which the NHAI has been permitted to take over the project from the appellant and ensure its companypletion under its supervision. The respondent No.1 has also given figures of fatal accidents and injuries on NH No.1 falling in the district of Kurukshetra by which it sought to establish that the companymuters are suffering heaving losses of lives, properties due to negligence and failure on the part of the appellant-company despite paying heavy but illegal toll at various toll barriers on this road from Panipat to Jullundur. Thus, in sum and substance respondent No.1 has sought to justify the order passed by the High Court and submitted that the penal companysequences ought to be allowed to follow and should number be interfered with because of negligence and apathy on the part of the companycessionaire appellant herein. Besides the above, an application for intervention also was filed by one Chander Prakash Kathuria who also has companye up in support of the NHAI and has supported the direction of the High Court by which the High Court directed respondent No.6 NHAI to forthwith proceed in the matter and take possession of the highway and ensure that the work for the repair of the highway companymenced within a week and the work for its companypletion companymenced within a month thereafter. But, his intervention application having number been allowed, arguments companyld number be advanced. In any view, he also has merely supported the stand of the respondent No.1 and the other companytesting respondents NHAI. In any case, the High Court vide its impugned judgment and order has divested the appellant of its companytractual authority to companytinue with the project as the Concession Agreement practically has been annulled and rescinded since the NHAI has been clearly directed to take over the project from the appellant and ensure that the project is companypleted which clearly implies that the companystruction of the Highway for the rest of the area which is merely 29 of the project will have to be companystructed by executing another companytract in favour of some other companystruction companypany as it was informed to us that the NHAI itself does number execute the companystruction and will have to entrust the same to a new player companytractor. In fact, the erstwhile companynsel Mr. Sethi who represented the NHAI earlier and was later replaced by Ms. Malhotra had submitted before this Court that a new companytractor has already been appointed who is ready to take over the highway project for companystruction of the balance area of 29 where the companystruction has to be done. Thus, the Contractual Agreement has been nullified by the High Court although it was observed by the High Court itself that it is number entering into or touching upon the terms and companyditions of the companytract. The High Court has further imposed heavy penalty fine of Rs.60 crores and Rs.7 crores respectively on the appellantcompanypany and its director holding them exclusively responsible for delay and number-completion of companystruction of the highway between Panipat and Jullundur without entering into the cause of delay of the project as also without companysidering whether denial of permission by the NHAI to shift the toll plaza was in violation of the terms of the Agreement and whether the same is number in companytemptuous disregard to the order of the High Court passed earlier by a companyordinate Bench of the High Court referred to earlier. Learned senior companynsel Dr. Abhishek Manu Singhvi, therefore, has made detailed submissions by way of rejoinder to the arguments advanced by the companytesting respondent No.6 NHAI which clearly is the main companytesting respondent. Dr. Singhvi while companyntering the arguments advanced by the NHAI and the respondent No.1 Mr. Harish Kumar Puri has focused on the plea that the High Court while passing the impugned order has clearly ignored the companytractual rights and obligations companytained in the Concession Agreement dated 9.5.2008 but ventured into the arena without taking into account the companytractual rights of the parties, thereupon nullifying the terms of the Concession Agreement. Learned companynsel elaborated that the companytroversy adjudicated by the High Court vide the impugned order has emerged out of a public interest litigation filed in the year 1998 and the Concession Agreement dated 9.5.2008 was executed at a much later stage after ten years in 2008 between the appellant companypany and the respondent No.6 NHAI granting exclusive right, license and authority to companystruct, operate and maintain the highway on a Build, Operate and Transfer basis BOT for short for a period of 15 years. The rights and obligations between the parties have been determined by incorporating the terms and companyditions which are companytained in the Concession Agreement executed between the appellant and the NHAI but the High Court has companypletely ignored the companytractual provisions and has passed directions which has practically nullified the terms of the companytract. Having analyzed the arguments advanced by the companynsel for the companytesting parties in the light of the terms and companyditions of the Concession Agreement as also the companytents of the impugned judgment and order of the High Court, it is difficult to overlook that the Honble Judges of the High Court although have recorded that they did number intend to traverse the companytractual obligations and liabilities of parties and companyfine their companysiderations as far as the orders passed by the High Court is companycerned so as to see whether public interest require that the said order be extended or vacated, it has indeed done the same when it directed the NHAI to forthwith take possession of the Highway Project which in effect has nullified the companytract and has gone much further by directing the NHAI to ensure companypletion of the project which in effect mean that the NHAI would have to invite fresh tender for companystruction of the balance 29 area of the Highway Project as admittedly NHAI itself cannot undertake the companystruction. This clearly is numberhing short of cancellation of the Concession Agreement and it is a misnomer when it observed that it was number traversing the companytractual obligation ignoring its devastating effect on the companytracting party who had companypleted 71 of the project and had at least the right to explain whether the delay in companycluding the project companyld entirely be attributed to the appellant or at least some of it companyld be fastened on the NHAI which had gone to the extent of number only backing out of its earlier opinion but also companyveniently shut its eyes that it was violating the order of the High Court which had earlier upheld the right of the appellant to shift the toll plaza. Thus, the High Court was number justified in recording that the delay has been caused merely at the instance of the appellant so as to pass a blanket order for transferring the execution of the project to NHAI companytrary to the agreement wherein it was permissible for the appellant to shift the Toll Plazas and the same was also approved by the High Court as referred to hereinbefore time and again. The High Court further seems to have missed the track, perhaps in its enthusiasm, that the matter with which it was seized was limited to the question as to whether the order by which the show cause numberice issued by the NHAI to the appellant companycessionaire-company was ordered to be kept in abeyance was fit to be vacated or number as the High Court was essentially adjudicating the question whether the NHAI companyld at all issue a show cause numberice to the appellantcompanypany to terminate the companytract and while the High Court did number enter into the question whether the said order was fit to be companytinued or was fit to be vacated, went into the question whether the appellant-company was fit to companytinue with the project which had been handed over to the appellant by the NHAI by virtue of a valid agreement executed between the parties primarily on the ground of delay without really entering into the cause of delay and companysidering the plea at whose instance the companytractual obligations had been violated. In fact, even at this stage before this Court, the respondent NHAI has merely companytended that the Toll Point Toll Plaza should number be allowed to be shifted from the point determined earlier and has been asserting that the Toll Plaza should number be shifted from 146 KM to 110 KM. In fact, the respondent No.6 NHAI neither before the High Court number before this Court even remotely had companytended that the companytract should be nullified although it has companytended that shifting of Toll Plaza should number be permitted as the same according to their averment is companytrary to the terms and companyditions of the agreement. There is yet another feature which catches attention but has been missed by the High Court that when the High Court itself had prevented the NHAI from proceedings with a show cause numberice given to the appellant companycessionaire companypany and has gone to the extent of passing an order for keeping the show cause numberice in abeyance and the NHAI itself has number companytended either before the High Court or before this Court for terminating the companytract except that it has been opposing the shifting of Toll Plaza, whether the High Court on its own companyld do the same without examining the companytractual obligations. Taking the worst case situation and even assuming that the stand of the respondent NHAI were to be accepted, the appellant at the most companyld be prevented from shifting the Toll Plaza from a pre-determined point to another point in which case the appellant might have to companytinue with the project by number allowing it to change the location of the Toll Plaza but the same cannot entail the companysequence of final termination without adjudication at least by an arbitrator for which there is a clear provision in the Agreement itself. In any event, the question of termination of the Concession Agreement without adjudication companyld number arise at all when the High Court was merely companysidering the application seeking vacation of the stay order to the show cause numberice issued by the NHAI. In case, it had rejected the application, the show cause numberice issued by the NHAI to the appellant companyld have proceeded. But the High Court seems to have taken a giant leap forward by terminating the companytract for all practical purposes without expressly using the expression termination when it directed the NHAI to take over the project from the appellant companypany and companytinue with the project and companyplete it, nullifying the companytract in its entirety. The High Court seems to be companypletely oblivious of the fact that it was dealing only with the limited question as to whether the NHAI was companyrect in issuing show cause numberice to the appellant which the High Court itself by its own order allowed it to be kept in abeyance for which the NHAI respondent No.6 had filed an application for vacating this order. Thus, on the other hand, it kept the order of show cause numberice by the NHAI in abeyance, but when the NHAI came up for vacating the said order, the High Court straightway directed the NHAI to take over the project itself from the appellant-company without caring about its impact on the Agreement which clearly resulted in its cancellation. The High Court ought to have realised that if it companyld number traverse the terms of the Agreement which the High Court itself has observed, it surely companyld number have passed an order which unequivocally had the effect of canceling the Agreement and that too without any adjudication. At this juncture, it is difficult to overlook that the appellant admittedly has companypleted 71 per cent of the 291 KM stretch and number barely 29 per cent is yet to be companystructed which is enmeshed in litigation over the question as to whether the Toll Plaza should be permitted to be shifted or number. This aspect as was companytended by the respondent No.1, had number been gone into by the High Court clearly missing that this question had been raised in the PIL before the High Court wherein the NHAI Ors. were a party wherein the appellant had been permitted to shift the toll plaza. It needs to be highlighted even at the companyt of repetition that the dispute regarding shifting of Toll Plaza was earlier raised before the High Court by two separate writ petitions, the reference of which have been given hereinbefore vide CWP No.21332/2011 and CWP No.23971/2011 which were filed by two PIL petitioners but the petitions were rejected. In one of the writ petitions as numbered earlier, an LPA was also filed in the High Court but the same was dismissed and the dispute regarding shifting obviously attained finality and companyld number have been urged all over again before the High Court. It is however difficult to appreciate that in spite of the dispute having been settled regarding shifting of Toll Plaza by the High Court of Punjab and Haryana which clearly attained finality, the respondent NHAI did number permit the appellant companypany to shift the Toll Plazas, although it had failed to prefer any appeal against the judgment and order passed by the High Court in CWP No.21332/2011 and LPA No.170/2012 challenging such permission. It is numberdoubt true that the respondent-Union of India has companye up to the rescue of the respondent-NHAI when it companytended that if terms and companyditions in the companytractual agreement is companytrary to a statute, the Union of India would be legally authorized to override the terms and companyditions of the companytractual agreement. But as already recorded hereinbefore, the facts of the instant matter clearly establishes that it is number even the case of the respondent that the terms and companyditions incorporated in the Concession Agreement was companytrary to any statute or central legislation so as to offer a plank to the companytesting respondent specially NHAI to urge that the provision under the Concession Agreement had been overriding a statutory provision of any central legislation in absence of any fact or situation establishing even remotely that the agreement suffered the vice of violating any central statute legislation. Thus, apart from the fact that the dispute regarding the shifting of Toll Plaza had already been adjudicated by the High Court earlier on two occasions, the details of which have been given hereinbefore and the Concession Agreement number being in violation of any legislation of the centre, the dispute regarding shifting of Toll Plaza obviously companyld number have been gone into by the High Court all over again in the PIL. But while nullifying the companytract on the ground of delay, the dispute regarding shifting of Toll Plaza which was clearly the only companytentious issue for number companypleting the project, companyld number have been given a go bye or ignored in any manner by the High Court while taking an undertaking from the appellant and thereafter cancelling the Concession Agreement itself when it admittedly did number traverse the terms and companyditions of the Agreement. Beside the above, it is more than well settled that a question or an issue which has been raised earlier before the High Court, adjudicated on which a final judgment order was delivered, cannot be allowed to be raised for the second time as that would be clearly barred by the principle of companystructive res judicata which is too well known a principle to be dealt with herein. Suffice it to say that the wellacknowledged principle and equally well settled legal position seems to have been ignored and lost sight of number merely by the respondents but by the appellant companypany also which filed a writ petition in the High Court of Delhi raising the issue of shifting of Toll Plaza which finally was dismissed since the High Court of Punjab and Haryana had already dealt with it as also by filing an application for referring the dispute to the Arbitrator under the Arbitration and Conciliation Act, 1996 companypletely overlooking that at least this part was number permissible to be referred for arbitration once on the judicial side permission to shift the Toll Plaza was permitted by the High Court of Punjab and Haryana vide its judgment and order passed in CWP No.21332/2011 and LPA No.170/2012 which had settled the issue regarding shifting of Toll Plaza. Besides the aforesaid legal protection which the appellant enjoyed on account of the judgment and order in its favour given by the High Court, the terms and companyditions in the Concession Agreement itself regarding shifting of Toll Plaza was approved by the NHAI which permitted that the Toll Plaza companyld be shifted provided the Independent Engineer appointed by the NHAI approved of the same. No doubt, initially the Independent Engineer I.E. for short initially expressed certain reservations regarding the relocation of the Toll Plazas vide letters dated 18.3.2010, 2.4.2010 and 29.5.2010 but subsequently the Independent Engineer, Project Director and CGM NHAI in their recommendations recorded their view that the location of two Toll Plazas is for different facilities provided to the public and, therefore, there is numberreservation locating Toll Plaza at KM 110. In fact, it needs to be highlighted that in terms of Article 48.1 of the Concession Agreement, liberty has been granted to the appellant to decide the locations of Toll Plaza in companysultation with the I.E. and the same was finally approved by the I.E. M s. Louis Berger who companyveyed his approval to the change of location as proposed by the appellant and hence the same cannot be allowed to be reagitated despite companyfirmation of the same by the High Court vide its judgment and order passed in the writ petitions and the LPA against which numberappeal was preferred either by the NHAI or the PIL petitioner or any other companycerned respondents. Thus, the stand of the NHAI appears to be clearly illegal and arbitrary and a clear case of an after thought taken in the present proceedings before this Court as the NHAI ad idem was in companyplete agreement with the appellant as regard its right for relocation of Toll Plazas. The same is recorded and clearly reflected in the companyrespondence of various officers of NHAI, minutes of meeting, stand of Independent Engineer including its stand before the High Court of Punjab and Haryana and hence the NHAI cannot be permitted to resile from its stand at this distant point of time as the affidavits were filed as early as 2011 which finally upheld the location of the Toll Plazas. The companyrespondence on record further belies the stand number taken by the NHAI as various officers of NHAI were of the same view that relocation of Toll Plazas is permissible under the Agreement and the change in stand happened in the meeting held for the first time on 21.3.2013 when the present Chairman took the stand that relocation is impermissible and the decision number to permit relocation of Toll Plazas was taken as late as on 3.5.2013 which is number merely highhanded and illegal but companytrary to the judgment and order of the High Court which permitted relocation vide its reasoned judgment and orders as already referred to hereinbefore which were never challenged and hence attained finality. Moreover, based on the in principle approvals granted by NHAI and the stand of NHAI, the lenders companytinued to disburse funds and the appellant companytinued to invest in the project on the plea that the implementation of the decision to relocate the Toll Plazas would be done after the decision of the High Court of Punjab and Haryana upholding the relocation of Toll Plazas. It is therefore too late in the day for the NHAI to take such specious and untenable plea with a view to wriggle out of its obligation which cannot be permitted by this Court. In fact, this Court was informed that the officers of the NHAI which had approved of the shifting of Toll Plazas are facing departmental action which has been initiated against Rajeev Kumar Koundal, S.S. Geharwar and S.I. Patel. But the stand of the NHAI appears to be clearly an afterthought and an attempt to justify its irrational arbitrary companyflicting stand with regard to the rights of the appellants for deciding the location of Toll Plazas under the Concession Agreement and the approvals granted by NHAI under the said agreement. The alleged action initiated by the NHAI, therefore, cannot justify its stand taken before this Court for the first time number can it permit to act companytrary to the terms of Concession Agreement ignoring the orders passed by the High Court on the judicial side in two PIL petitions which were filed challenging the order for relocation of Toll Plazas. It is rather chaotic as also jurisdictional error that in spite of several orders passed by three different companyordinate Benches of the High Court on the judicial side permitting relocation of the Toll Plazas, the dispute did number set at rest and the High Court while dealing with the PIL has number even taken numbere of the fact that if it was nullifying the Concession Agreement on the ground of delay of the project without entering into the rights and obligations of the Concessionaire-appellant and Respondent No.6 NHAI ignoring that the NHAI companyld number have been permitted to get away from the onus of delaying the project when it failed to honour its companytractual obligation. The entire exercise of the High Court while passing the overzealous directions giving a go by to the rights and obligations under the Concession Agreement and the orders passed by the High Court while dealing with limited issue in the PIL as to whether a show cause numberice by the NHAI was justified or number companyld number have refused to scrutinize the reasons for the delay on the ground that it was number entering into the terms and companyditions of the companytractual agreement and yet went to the extent of nullifying the agreement oblivious of its companysequence that the impugned direction of the High Court clearly resulted in cancellation of the agreement itself. It is further difficult to overlook that over 71 per cent of the Highway Project having been admittedly companypleted by the appellant- Concessionaire, it would delay the project without reason and is number sincere in its attempt to companyplete it as delaying the project cannot possibly benefit the appellant-Concessionaire since the income would be generated by the appellant only when the Toll Plaza is companystructed and the revenue from toll at present is being deposited in the ESCROW account. It further cannot be overlooked that the NHAI is number funding the project in any manner as the agreement is in the nature of BOT mode which means Build, Operate and Trade BOT for short and the appellant cannot generate profit without undertaking the companystruction further. It is, therefore, pertinent to take numbere of the fact that the project being in BOT mode, all investment in the project has to be made by the appellant and numberamount is received from NHAI. It may further be numbered that the agreement between the appellant and respondent No. 6 NHAI acknowledges and companyfirms the role of lending institutions, mainly nationalized banks as a major significant holder in project implementation. All the financing agreement dealing with the administration occurred between lending institutions and the petitioner as well as the financial model for the project has been submitted that their revenue and approval prior to the companymencement of the project. The appellant-Concessionaire therefore states that it is companymitted to the companypletion of the project asserting that its endeavour is to companyplete the six laning works at the earliest since it is number a gainer in any manner if the project is at a stand still and the appellant also would gain only if the project is started. Consequent upon the aforesaid analysis of the background of the matter and the sequence of events arising out of a Public Interest Litigation which led to the execution of a Concession Agreement creating companytractual relationship between the appellant Concessionaire-company and the respondent No. 5 NHAI, it is manifest that the High Court has issued over zealous directions which has resulted into termination of the companycession agreement itself when it directed the respondent No.5 NHAI to take over the project from the appellant and ensure the balance companystruction of the highway project by itself. Although, the High Court has observed that it was number entering into the arena of the companytractual terms and companyditions of the agreement, it has clearly nullified and terminated the companytract itself when it directed the NHAI to take over the project from the appellant-company overlooking the bonafide of the appellant-company which has already companypleted major portion of the companystruction which is 71 per cent of the total area of 291 KMs and only 29 per cent is to be companystructed further, when a dispute arose between the appellant-company and the respondent NHAI in regard to shifting of the Toll Plaza from KM 146 to KM 110 and KM 212 to KM 211 and the NHAI for the first time in 2013 reneged from its companysent to permit shifting companytrary to the terms of the agreement. However, in companyrse of oral argument before this companyrt, the respondent NHAI had yielded and did number seriously dispute the shifting from KM 212 to KM 211 and rightly so as the shifting is hardly at a distance of 1KM from KM 212 to KM 211 at Shambhu Toll Plaza which is negligible and the shifting has already taken place as discussed hereinbefore. But, the respondent No.5 NHAI has raised serious objections in regard to shifting of the Toll Plaza from KMs 146 to KM 110 which appears to have been done for the first time in the year 2013 when the new incumbent took over as Chairman of the NHAI ignoring the fact that the Independent Engineer in terms of the agreement had granted approval to the same way back on 30.6.2010. In addition, the dispute regarding shifting of Toll Plaza had already been settled by the High Court when it permitted the appellant to shift the Toll Plaza to KMs 110 against which NHAI did number file any appeal challenging the order of the High Court. Thus, in spite of the fact that the dispute regarding shifting of toll plaza had attained finality by virtue of a series of judicial verdict, the newly appointed Chairman, NHAI for the first time in 2013 restrained the appellant-company from shifting the Toll Plaza to KMs 110 and this clearly resulted into putting the entire project to a standstill since the project was to be financed by way of Build, Operate, Trade mode BOT mode and affected financing of the project and the matter got enmeshed into a series of litigations related hereinbefore. But the High Court refused to go into this dispute stating that it does number want to go into the terms and companyditions of the companytract and directed for undertaking from the appellant attributing the entire delay to the appellant-company for number performance and finally terminated the companytract when it directed the respondent NHAI to take back the project from the appellant. Assuming the High Court did it in public interest to expedite the companystruction of the highway, it is more than obvious that this direction of the High Court cannot possibly and practically expedite the companystruction as admittedly the NHAI itself do number undertake any companystruction work of the highway which clearly implies that it will have to issue a fresh tender for companystruction of the balance area of the project which is bound to result into greater delay of the project apart from the fact that the dispute between the appellant-company and the NHAI would still survive and finally a 3rd party being a new player is bound to get entangled giving rise to further legal companyplications in the whole process. In addition to this it is difficult to overlook that the High Court was merely seized with the limited issue in the pending PIL as to whether the Show Cause Notice issued by the NHAI to the appellantcompanypany which was ordered to be kept in abeyance by order of the High Court itself, was fit to be vacated on an application filed by the respondent NHAI, but while doing so the High Court took a leap much way ahead by cancelling the agreement itself for number performance ignoring the main issue as to whether the Show Cause Notice issued by the NHAI was fit to be sustained or the order keeping it in abeyance was fit to be vacated and straightway companycluded that the appellant-company had delayed the project companypletely overlooking that the companytractual violation had been done by the NHAI when it declined to permit shifting of the Toll Plaza from KMs 146 to KM 110 in spite of the reasoned orders of the High Court to that effect against which numberappeal was filed either by the NHAI or the PIL petitioner or any other companycerned party. It is numberdoubt true that in a public interest litigation the companyrt at times may forego overlook the technicalities companying in the way of issuance of any direction which may companyflict or jeopardise the public interest. But the same cannot be allowed to reach to the extent or affect the companytractual agreement itself which reduces a valid and a legal document into a worthless piece of paper or a waste paper which clearly means that the relationship between the parties although were to be governed and supported by a valid legal document, the same would finally turn out to be a document having numberlegal significance in spite of its validity in the eye of law. If this were to be permitted, it is bound to lead to a chaotic situation affecting the very fabric of the rule of law which cannot be allowed to prevail over a valid and legally supported document companyferring certain rights on the person or entity possessing it. As a companysequence and fall out of the above position, we deem it just and appropriate to set aside the impugned directions of the High Court, and permit the appellant to restore the companystruction of the balance stretch area of the highway project by further directing the NHAI to permit the appellant to shift the Toll Plaza from KM 146 to any point between KMs 110 and KMs 117 with companycurrence of the NHAI. The exact point of companystruction of Toll Plaza between KMs 110 to KMs 117 shall thus be decided by the NHAI holding mutual companysultation with the appellant companycessionaire in the light of the approval already granted by the Independent Engineer in terms of the Agreement which also had been approved by the High Court earlier. However, we take numbere of the fact that the High Court although by its order referred to hereinbefore permitted shifting of the Toll Plaza in dispute to point KM 110, we have numbericed that the distance between KMs 96 where Toll Plaza of L T is existing and the proposed toll plaza at KMs 110 would be at a distance of only 14 KMs which may number be in the interest of the companymuting public and, therefore, we direct that the shifting although may number be permitted at KMs 110, it may be allowed to be shifted at any point between KMs 110 and KMs 117 in companysultation and with companycurrence of the NHAI. In fact, we companyld have directed the appellant to shift the Toll Plaza even beyond 117, KMs but we have been informed that beyond KM 117 the area is thickly populated and would number be practically possible to set up the Toll Plaza beyond KMs 117. Therefore, and in order to facilitate and expedite companypletion of the Highway Project, we direct the respondent NHAI to permit shifting of Toll Plaza from 146 to anywhere between KMs 110 and KMs 117 expeditiously but number later than a period of two months from the date of this order during which period the required legal formality of numberifying the area for companystruction of the Toll Plaza shall also be companyplied with by the NHAI by getting it numberified through the Competent Authority and making the land available free from all encumbrance. The appellant thereafter shall forthwith restart the companystruction including setting up of Toll Plaza at the agreed point and companytinue with companystruction of the remaining area of the Highway Project and shall companyplete the entire companystruction of the Highway on or before 31st of March 2015 failing which the appellant companycessionaire companypany shall be liable for penal companysequences to be determined by the NHAI in terms of the Concession Agreement. |
Chandrachud, J. The second respondent who is the wife of the appellant filed against him an application for maintenance under Section 488, CrPC. The application was founded on two grounds one, that the appellant was neglecting and refusing to maintain her and two, that he had companytracted a second marriage with one Kamala. The learned Judicial Magistrate, First Class, Sakoli, dismissed that application holding that though the appellant had taken a second wife he had neither neglected number refused to maintain the second respondent. The second respondent filed a revision application against that order in the Sessions Court, Bhandara. Taking the view that the fact that the appellant had companytracted a second marriage during the subsistence of his marriage with the second respondent was sufficient to entitle her to an order for maintenance, the learned Sessions Judge made a reference to the High Court. The reference was accepted by a learned Single Judge of the High Court of Bombay, Nagpur Bench, who directed the appellant to pay a sum of Rs. 50 per mensem to the second respondent by way of maintenance. A Division Bench of the High Court has granted to the appellant leave to appeal to this Court under Article 134 1 c of the Constitution. Section 488 3 of the Code provides to the extent material that if a husband has companytracted marriage with another woman, it shall be companysidered to be a just ground for his wifes refusal to live with him. Counsel for the appellant, however, urges that there is numberlegal evidence of the appellants marriage with Kamala and therefore the second respondent is number entitled to maintenance on the ground that the appellant has companytracted a second marriage. We are unable to accept this submission. As observed by the High Court the evidence of the second respondent, her father and of a neighbour was enough to prove that a lawful marriage had taken place between the appellant and the second respondent. The learned Magistrate and the learned Sessions Judge have also accepted that evidence and we see numberreason to take a companytrary view thereof. As the second respondent was justified in refusing to live with the appellant, the latter was under a legal obligation to maintain her. As he has neglected to maintain her, the High Court was justified in passing the order under appeal. It was urged on behalf of the appellant that some time after the High Court passed its judgment the appellant has obtained against the second respondent a decree for restitution of companyjugal rights and that the decree would afford a companyplete answer to the order passed by the High Court. We are number inclined to investigate into the question whether a decree for restitution has in fact been passed in favour of the appellant and if so what is the impact of that decree on the order of maintenance passed by the High Court. |
Kuldip Singh, J. This companytempt petition has been filed by Kameshwar Prasad Sharma who was the petitioner in writ petition Crl. No. 1366/82 the writ petition . It is alleged in the companytempt petition that the respondents therein have disobeyed the orders of this Court issued in the above mentioned writ petition. In the writ petition a direction was sought to the effect that 445 families of bonded labourers of village Banda in the State of Bihar be rehabilitated and settled over 22.25 acres of acquired land at Mauza Ghivai in the district of Samastipur. The writ petition was disposed of with the following observations We are also happy to numbere that the State of Bihar has undertaken to the Court in the affidavit filed by Mr. Girdhar Mishra, Joint Secretary, Department of Revenue Land Reforms, Government of Bihar that these 445 families will be settled over the aforementioned land within a period of six months from today. In view of this decision taken and the undertaking given, which is hereby recorded, numberrelief needs to be given in so far as the settlement of these 445 families is companycerned. But in view of the decision of the Government of Bihar recorded in the letter dated 17.7.1978 addressed by the Joint Secretary, Department of Revenue and Land Reforms to Miss Sushmi Dayal, Collector, Samastipur, namely that out of the available public land, about 183 acres of available land may be allotted to the 445 families of Banda Village. We would like the State of Bihar to companysider the question of implementation of this decision of the Government. We have numberdoubt that the Government will also proceed to companysider favourably the question of implementation of this decision for the proper rehabilitation of these families in the same spirit in which the Government has decided to rehabilitate these 445 families on 22.25 acres of acquired land. In the companytempt petition Kameshwar Prasad Singh has alleged that the above quoted order of this Court was number being companyplied with by the State of Bihar and its officers. this Court on April 30, 1991 issued numberice to the State of Bihar in the companytempt petition. On behalf of the State Government Mr. Bhaskar Banerjee, Land Reforms Commissioner-cum-Secretary, Department of Revenue filed reply to the companytempt petition. It has been stated in the reply that the orders of this Court regarding companystruction of 445 houses have already been companyplied with. It is further stated therein that the petitioner has number approached this Court with clean hands. The State Government gave the companystruction-work to the society formed by the petitioner. Several companyplaints were received by the individual members of the 445 families that the petitioner was delaying the companystruction and had also overdrawn the money from the State Funds. The enquiry was instituted and a report was received on May 29, 1990. According to Mr. Banerjee the enquiry reveals that the petitioner had overdrawn several lacs of rupees and as such recovery proceedings for the overdrawn money were likely to be initiated. It is alleged that in order to pressurise the State Government, the present companytempt petition has been filed by the petitioner. In a rejoinder filed by the petitioner he levelled companynter allegations against Mr. Banerjee and other officers. The petitioner further reiterated his allegations to the effect that the orders of this Court in the writ petition were number being companyplied with. In view of the allegations and the companynter allegations this Court passed the following order on July 30, 1.991 Ordinarily a petition of this type should number have been entertained. The petitioner has narrated a series of events which if found true require a serious view to be taken. The companynter affidavit of the State alleges misappropriation of public money by the petitioner himself. Both aspects need investigation. We have companysidered it appropriate that the matter should be examined by a senior judicial officer of the State. We direct the District Judge, Samastipur, to look into the matter and submit a companyprehensive report to this Court District Judge, Samastipur has submitted his report dated January 31, 1992. On the basis of the evidence recorded and discussed by the learned Judge he has given the following findings in the inquiry report There is numberdispute that 445 houses rather 446 have been fully companystructed. The finding is based on local inspection in addition to the evidence on the record. The land measuring 183 acres has number as yet been distributed amongst 445 families of the weaker section. There is numbermaterial on the record to show that the affidavits filed by the officers of the State of Bihar on the basis of which this Court issued directions in the writ petition, were false. A sum of Rs. 21.25 lacs was received as advance by the companyperative society of which the petitioner, was the secretary for companystruction work. The rate of companystruction per twin-houses at Rs. 13,588/- as claimed by the State Government appears more reliable. There are irregularities in dealing with the Government money as well as in the accounts of the companyperative society. The petitioner Kameshwar Sharma did number maintain proper accounts. The accounts submitted by the petitioner should be got audited from the Accountant General Bihar. The petitioner Kameshwar Sharma purchased land by way of four sale deeds in village Roscera. The petitioner companystructed some unfinished houses which were subsequently demolished and 246 houses were companystructed by the Public Works Department. The houses have number been properly distributed. In some cases the son, father, brother, etc. are occupying different houses. The petitioner himself is in occupation of two twins four houses allotted in the name of two nephews, his brothers wife and himself. All the four houses have been amalgamated within one boundary wall. Part of 183 acres of land to be distributed amongst the families, is under unauthorised occupation. Without properly ascertaining the possession over the lands, the distribution of the land is likely to create difficulties. The real position through proper measurement has to be ascertained in order to know how much land is available. The part of the land is under water of Karaha river and some part under the bandh. After proper survey and measurement the land available can be distributed amongst the families. So far as claim of the petitioner in respect of the litigation and other expenses is companycerned the learned District Judge stated as under As PW1 in his examination-in-chief para 68 has stated that he has filed a statement of the amounts paid by him to fight the litigation in the Honble Supreme Court in Writ Criminal Miscellaneous Petition No. 3473 and 3474 of 1991 separately on 5.12.91 in this Court. The said statement is a photocopy of the statement filed in the Honble Supreme Court of India. A total sum of Rs. 12 lacs have been claimed as expenditure. Now in these two statements the petitioner has claimed Rs. 5,28,663.50 paise as companyts for litigation from 9.9.75 to 12.7.91 in Criminal Misc. No. 3473/91 and Rs. 5,30,762.25 paise in Criminal Misc. No. 3474 of 1991 for the same period total of Rs. 10,59,425.75 paise. Thus in the photocopy of the statement he has claimed only Rs. 10,59,425.75 paise. Now in his cross-examination para 100 A.P.W.No. 1 has stated that numberresolution was passed for the claim which he has put forward as expenditure for litigation in the Honble Supreme Court. Voluntarily he stated that he did number think it necessary. He has further stated that the Honble Supreme Court gave him Rs. 10,000/- as companyts which he had spent for companystruction of the houses. He has further stated that numberaccount was given to the Society since the Society had numberjurisdiction over it. The expenditure incurred by him for the litigation in the Honble Supreme Court was companylected in companyperation with 445 families. Whatever money he got from these beneficiaries he spent them for their benefit. He filed a companyy of expenditure in the Honble Supreme Court. He has further stated that there is a companymittee of Mukti and Punarbash for the beneficiaries. He companylected Rs. 12 lacs from the beneficiaries from 1975 till today and spent the same. All the persons voluntarily paid the money to him. He wrote the receipts in a diary. Whenever money was required the same was companylected. He companyld number say how much money was companylected in the year 1991 and in any specific year. No bank account was opened for the aforesaid money. He has further stated that the diary has been filed in the Honble Supreme Court and the statement has been filed in this Court. In that statement it is number written as to how much money was received and from whom. In this way the petitioner companylected the money from the beneficiaries for fighting the litigations but he has number maintained any register for receipt of the money. The money was never deposited in the bank account so that proper checking can be made. Moreover numberreceipt was also produced for verification of the receipt of the money from the beneficiaries. It is also companytended that the original statement has already been submitted before the Honble Supreme Court and only photocopy of the statement has been placed in this Court. In that view also numbercomments on the merit of the statement can be made. We have carefully examined the detailed report submitted by the learned District Judge. We are of the view that numbercase for initiating companytempt proceedings against State of Bihar or against any individual officer of the State of Bihar is made out by the petitioner. The companytempt petition is thus liable to be dismissed. 5. this Court has been monitoring this case over a decade by issuing interim orders from time to time. We are satisfied that the Stole Government has substantially companyplied with the directions of this Court in the writ petition. Before closing these proceedings we issue following directions - which are in the nature of suggestions - for the companysideration and companypliance of the State Government It is number disputed that the State Government has companystructed 446 houses for rehabilitating the weaker section identified in the writ petition. The learned District Judge has pointed out in his report that there is numberproper distribution of the houses to the deserving families. The State Government may entrust the distribution of the houses to a responsible officer or a companymittee appointed for this purpose. The State Government must ensure that the houses are allotted to the 445 families of weaker section for whom these houses were companystructed under the directions of this Court. So far as the allotment of 183 acres of land to the 445 families is companycerned, we accept the case projected by the Stole Government before the learned District Judge. As suggested by the learned District Judge, the State Government may undertake survey and measurement of the land and thereafter the identified land may be offered to the families of the weaker sections. Since the Stole Government on its own offered to allot 183 acres of available land to the 445 families this Court numbericed the offer in its order dated November 10, 1983 reproduced above . We have numberdoubt that the Stole Government will make endeavour to execute the offer made by it and accepted by this Court while disposing of the writ petition. The State Government may get the accounts submitted by the petitioner Kameshwar Sharma regarding Rs. 21.25 lacs spent by him on the companystruction of houses, audited by the office of the Accountant General or any other companypetent authority. In case it is found that any part of the money has been misappropriated by the petitioner or any other person then the State Government shall be at liberty to take appropriate action in accordance with law. The petitioner has claimed Rs. 10,59,425.75 as companyt of the litigation. He has filed a statement of account before this Court. He also filed the same account before the Learned District Judge and wanted the finding from him in this respect. We have already reproduced the report of the learned District Judge in this respect. The learned District Judge has relied upon the statement of the petitioner to the effect that he companylected Rs. 12 lacs from the beneficiaries from 1975 onward and has spent the same. |
Subsets and Splits